GSLA Country Profiles

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1 Global Study on Legal Aid Country Profiles

2 United Nations Development Programme (UNDP) partners with people at all levels of society to help build nations that can withstand crisis, and drive and sustain the kind of growth that improves the quality of life for everyone. On the ground in nearly 170 countries and territories, we offer global perspective and local insight to help empower lives and build resilient nations. One United Nations Plaza New York, NY 10017, USA www.undp.org United Nations Office on Drugs and Crime (UNODC), working in collaboration with partners and through a network of field offices, helps Member States in achieving security and justice for all by making the world safer from crime, drugs and terrorism. Building on its mandates and expertise in the areas of crime prevention and criminal justice, UNODC endeavours to foster the development of fair, human rights-compliant and effective criminal justice systems grounded in the rule of law. Vienna International Centre P.O. Box 500, 1400 Vienna, Austria www.unodc.org © United Nations, December 2016. All rights reserved, worldwide. The designations employed and the presentation of material on maps used do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations or UNDP concerning the legal status of any country, territory, city or area or its authorities, or concerning the delimitation of its frontiers or boundaries. Information on uniform resource locators and links to Internet sites contained in the present publication are provided for the convenience of the reader and are correct at the time of issue. The United Nations takes no responsibility for the continued accuracy of that information or for the content of any external website. This publication has not been formally edited. Design by LS — lsgraphicdesign.it

3 Global Study on Legal Aid – Country Profiles Table of Contents How to Read the Country Profiles 4 8 Asia-Pacific Western Europe Latin America 177 383 & the Caribbean & Others Group Afghanistan 9 178 Argentina Australia 384 China 19 189 Brazil 395 Austria Japan 31 200 Dominican Republic 406 Canada 42 Nepal Ecuador 210 419 Cyprus Thailand 54 Guatemala 221 Finland 427 Viet Nam 65 231 Haiti 437 Greece Mexico 240 446 Israel Paraguay 250 75 Sub-Saharan Africa Italy 456 New Zealand 467 76 Benin 480 Portugal 259 Eastern Europe Burkina Faso 85 490 Spain & Central Asia 96 Cabo Verde 500 United Kingdom Chad 105 United States of America 511 Armenia 260 Democratic Republic of Congo 114 270 Belarus 124 Ghana Table of Legal Aid Bulgaria 280 Kenya 135 Legislation 291 Czech Republic Mauritania 145 301 Georgia Mauritius 153 The Right to Legal Aid 313 Kazakhstan South Africa 163 525 Around the World Lithuania 324 Moldova 334 Montenegro 346 Slovak Republic 354 Turkmenistan 363 Ukraine 372

4 Global Study on Legal Aid – Country Profiles How to Read the Country Profiles What are the Country Profiles? This publication was developed as part of the Global Study on Legal Aid undertaken by UNDP and UNODC, and aims to provide a snapshot of the current state of legal aid in 49 countries around the world. Country Profiles were developed for countries where both Member States and independent national ex- perts completed the survey on legal aid conducted as part of the Global Study. This publication also in- cludes a Table of Legislation which provides information about the legislation that guarantees the right to legal aid in 125 countries. What is the source of this information? Each Country Profile presents the main findings from a global survey on legal aid administered to one or more government representative(s) (from a relevant state institution overseeing or administering the national legal aid system) and one or more independent national expert(s) (national researchers or civ- il society actors with first-hand knowledge and/or experience of the country’s legal aid system.) UNDP and UNODC field offices also participated in subsequent reviews and validations of survey results. What is covered in a Country Profile? A Country Profile has eight sections: 2 Country snapshot Finances 2 2 Legal aid at a glance 2 Provision of legal aid in criminal and civil/ Legislative framework 2 administrative cases Delivery model 2 2 Quality safeguards Service providers 2 While the survey questionnaire addressed to the government representative was mainly used to obtain information about the legal and regulatory framework of a country’s legal aid system and the delivery model in place, the questionnaire addressed to independent national experts solicited additional inputs on their assessment of the effectiveness, accessibility and quality of legal aid services provided. 4

5 Global Study on Legal Aid – Country Profiles Which external sources of information have been used to complement global survey data in Country Profiles? Rural vs. urban population Total population Source: World Bank, 2014 Source: World Bank, 2014 Rural population refers to people living in rural areas as defined by national statistical offices. Type of government system : A system of govern- Unitary System 2 A system of govern- Federal System: 2 ment in which most or all of the gov- ment in which the governing power erning power resides in a centralized is divided between a central authority government, including administration and constituent political units. In fed- of State-funded legal aid services. eral systems, the central and regional governments share responsibilities for the administration of State-fund- ed legal aid services. In many federal countries, the regional governments provide legal aid services through a separate legal aid plan. Male and female adult literacy rate GNI per capita & income group Source: World Bank, 2014 Source: World Bank, 2014 GNI per capita, Atlas method (current US$). Percentage of women and men age 15 and above who 2016 Classification of income groups. can, with understanding, read and write a short, simple statement on their everyday life. $1,045 $4,126 $12,736 MID/HIGH MID/LOW LOW HIGH 5

6 Global Study on Legal Aid – Country Profiles Inequality-adjusted HDI HDI Source: 2014 HDI country groupings, UNDP The difference between HDI and inequality-adjusted HDI, expressed as a percentage of the HDI, indicates the The Human Development Index (HDI) is a composite loss in human development due to inequality. index measuring average achievement in three basic dimensions of human development: A long and healthy life , as measured by life 2 expectancy at birth as measured by the mean years Knowledge 2 , of schooling for adults aged 25 years and more and the expected years of schooling for children of school entering age 0.55 0.8 0.7 , as measured A decent standard of living 2 by gross national income per capita. MID LOW HIGH VERY HIGH Gender Development Index Source: 2014 Gender Development Index groups, UNDP The Gender Development Index is simply the ratio of female to male HDI values, and provides insight into gender 0.925 0.95 0.975 0.9 disparities in achievements in three basic capabilities: health, education and command over economic resources. MID/HIGH HIGH LOW MID/LOW MID Rule of Law Index 2015, World Justice Project The Rule of Law Index produced by the World Justice Project measures the rule of law based on the experiences and perceptions of the general public and in-country experts worldwide. Country profiles feature specific survey questions on legal aid which were administered to measure the Rule of Law Index — reflecting the voices of both local citizens (1000 respondents per country on average) and local legal experts (25 respondents per country on average). worldjusticeproject.org/rule-of-law-index 2 People’s trust in courts A lot 6 From the General Population Poll, respondents were asked Some 36 whether they have “a lot”, “some”, “a little” or “no” trust in the courts. A Little 39 No Trust 18 3 3 100 % 0% People who believe that the police always or often respects the basic rights of suspects From the General Population Poll, respondents were asked on a scale of “always”, “often”, “rarely”, or “never”, whether the police respects the basic rights of suspects. The Country Profiles display the percentage of respondents who answered 69% “always” or “often”. 6

7 Global Study on Legal Aid – Country Profiles People who received legal assistance when seeking to resolve a conflict with someone who refused to fulfill a contract or pay a debt, during the past 3 years From the General Population Poll, respondents were asked - whether they or someone in their household have experi enced a conflict with someone who refused. 22% Sample size: 60 How serious are the following problems in criminal Excessive pre-trial detention courts in the city where you live? Delay of cases Local experts were asked to rate on a scale from 1 to 10 (with Poor judicial decisions 10 being a very serious problem, and 1 being not a serious Inadequate resources problem), how serious various problems are in criminal courts Inadequate criminal defence in the city where they live. Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious How serious are the following problems in influencing Court fees people’s decisions on whether or not to go to civil Attorney fees courts to resolve a dispute, in the city where you live? Lack of legal aid Local experts were asked to rate on a scale from 1 to 10 (with Location of Courthouses 10 being a very serious problem, and 1 being not a serious Duration of cases problem), how serious various problems are in influencing Bias against people’s decisions on whether or not to go to civil courts to marginalized people solve a dispute in the city where they live. Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious This research reviews countries that have formally Grassroots Legal Advocates: recognized, either in law or in policy, the role that grassroots Scale, Recognition & Financing, legal advocates play in providing justice services. Each by Namati (2016) national brief assesses the scale and work of grassroots legal advocates who have been recognized by government, and Thirteen Country Profiles (Afghanistan, Argentina, Australia, the extent to which their work is publicly financed. The briefs Canada, China, Kenya, Moldova, Nepal, New Zealand, South also incorporate practitioner's observations on how the Africa, Ukraine, United States of America and Viet Nam) have letter of the law may differ from reality, and reasons a specific section on paralegals which draws from Namati’s for any discrepancy. series of research briefs on "Grassroots Legal Advocates: Scale, Recognition & Financing.” namati.org/recognition-of-grassroots-legal-advocates 2 7

8 Asia-Pacific 9 Afghanistan China 19 Japan 31 Nepal 42 Thailand 54 Viet Nam 65

9 Afghanistan Asia-Pacific Afghanistan 31.63 milion Population Unitary government system 45% 26% 18% 74% Male literacy rate Female literacy rate Rural population Urban population $680 0.6 GNI per capita Gender Development Index 0.9 0.925 0.95 0.975 $12,736 $4,126 $1,045 HIGH MID/LOW MID/HIGH MID/LOW MID/HIGH MID HIGH LOW LOW -31.4% 0.465 0.319 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.7 0.55 0.8 0.8 0.55 0.7 VERY HIGH LOW MID HIGH VERY HIGH MID LOW HIGH

10 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific Legal Aid at a Glance in Afghanistan Never conducted 2006 N/A Annual expenditure Most recent reform of the legal When was the last assessment aid system in 2006 on legal aid per capita in 2013 of legal aid needs conducted People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 6 A lot pay a debt, during the past 3 years Some 36 Citizen survey, WJP Rule of Law Index 2015 A Little 39 No Trust 18 39% 3 3 100 % Sample size: 178 0% Challenges in accessing legal aid Priority areas for support Legislative drafting advice h Lack of lawyers, with a particularly acute shortage  outside urban areas Development of action plans/policies h  Development of quality criteria for legal aid providers Lawyers are paid very little for legal aid work Establishing paralegal systems The bar association has expressed resistance to the idea h  Institutional support, notably with regards to establishing a of allowing paralegals to fill the gap of available lawyers case management system People often prefer to resolve issues through the informal h  justice system, where legal professionals do not typically Training participate  Support to undertake a comprehensive assessment of legal aid needs People may not know where to find legal assistance, h Provision of equipment  or may not be aware that legal aid services are available at little or no cost 10

11 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific Legal framework The right to legal aid was first recognized by law in 1986, and was reaffirmed Right to legal aid as a fundamental right of Afghan citizens under article 31 of the Constitution, in 2004. The latest substantial reform of the legal aid system took place in 2006, The right to legal aid is guaranteed in: with strong involvement by the bar association. Constitution 2 Law on judicial procedure 2 State-funded legal aid is available at national and regional levels. Regulations addressing State 2 actors Criminal procedure law 2 Implementing regulations for 2 the law on legal aid Legal aid is mainly provided in the form of legal advice, for both criminal and Services included civil cases. Additional services are provided in criminal cases, such as legal as part of legal aid representation, as well as general assistance in navigating the justice system, and in executing legal documents. Specialized legal aid services are not provided by the State for specific popula- tion groups, such as persons with disability, the elderly, migrants and refugees, e t c . Legal aid is provided upon request from the person who wants legal aid, Process for obtaining or upon request from other justice actors, such as the police, the prosecutor, the legal aid bar association or a legal aid provider. The court presiding over a case must also assess eligibility during the first appearance of the parties. The determination is automatic if the case or legal aid recipient qualifies for legal aid services under the law, in which case no proof is necessary. In certain cases, a person must prove eligibility by providing supportive documentation proving status as recipient of welfare or as member of a pro- tected group, as well as proof that the applicant’s claim has merit. In other cases, no proof is needed, and entitlement to legal aid depends mainly on the com- plexity of the matter requiring assistance. The State has carried out in 2014-15 a public information campaign to raise Awareness of the right awareness about the right to legal aid (with a focus on existing laws and offi- to legal aid cial policies on legal aid, but less so on how to access legal aid). Despite these ef- forts, independent national experts estimate that the general population is ‘not knowledgeable at all’ about the right to legal aid services. 11

12 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific Delivery model The Ministry of Justice and the Afghanistan Independent Bar Association have Legal aid authority chief responsibility for the management of legal aid. A legal aid board is constituted by representatives from the bar association, the Ministry of Justice and officials specializing on legal aid, the national human rights institution, non-governmental or other civil society organisations, and paralegal as- sociations. While most of these representatives are appointed by their respective institutions, civil society representatives are elected. Legal aid services are provided through public defender institutions, the legal Organisation aid board, civil society organisations and schemes (the provision of pro bono of legal aid services services is a condition for membership in the bar). pro bono According to Article 5 of the regulations on Legal Aid, to place a request for Mechanism for the services of a legal aid provider, the police, the prosecution office or a court assigning legal aid introduces a suspect/accused eligible for legal aid to the legal aid department providers of the Ministry of Justice in Kabul, or in provincial justice departments. State-funded legal aid services are not provided in rural areas. Accessing legal aid in urban vs. rural areas 12

13 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific Service providers Lawyers 1/105,425 N/A and other providers Full-time Licensed practicing /people lawyers legal aid lawyers /people 1/31,627 Paralegals /people Civil society University-based law clinics organisations State-funded legal aid providers must have a law degree and must show proof Qualifications required of passing a professional examination. They must also be a member of the bar and registered in a State-authorised roster of legal aid providers. Separate test- ing is required to be accepted as a staff member of an institutional legal aid provider. Paralegals do not require formal educational training, but must have experience working as a legal assistant to a lawyer. Legal aid providers are required by the bar association to engage in continu- ing education or skills training, but the State does not allot funds to this effect. Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 Yes, although community paralegals are not recognized by binding laws. For in- stance, Article 44 of the Bylaws of the Afghanistan Independent Bar Association (AIBA) notes that graduates from madrassas or students of law or sharia faculties at universities may take up duties as a paralegal or legal assistant. Some para- legals are authorised to work with legal aid organisations, while others act as ‘conciliator’ or respected legal decision-makers in their communities. Generally, paralegals provide legal advice and legal information on police precincts or in prisons, as well as general assistance in navigating the justice system. 13

14 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific Does any public revenue fund paralegals? No, paralegals are not directly funded by the government. The Legal Aid Board Procedures under Article 9 explicitly state that paralegals are recruited by non-governmental legal aid providers and law clinics, and “are paid by them.” Can paralegals engage in litigation (with or without the help of lawyers)? No, paralegals are not given the right to litigate without lawyers, although the law on advocates allows for graduates of madrassas and family members of the accused (both of which can serve as paralegals) to litigate cases in cer- tain scenarios. Are there boards that monitor community paralegals? No independent board monitors community paralegals. The broad spectrum of paralegals in Afghanistan means that there is no cohesive standard for assessing their work, but it is possible for paralegals to seek accreditation. Finances Legal aid services for both criminal and civil cases are free of charge for those Costs to recipients meeting eligibility criteria. Primary legal aid services are provided for free at the offices of the public defender and at the legal aid department of the Ministry of Justice. A hotline (119) has been established for the public to conveniently seek advice at no cost, irrespective of a person’s geographical location. Some civil so- ciety organisations also provide primary legal aid services for free to people to come to their offices. There is no separate component on legal aid in the annual justice budget. The Legal aid in the annual budget for legal aid is determined by the Ministry of Justice and the legal aid justice budget board. International donors cover the costs of specialized legal aid services for disadvantaged populations. Additional services such as independent investiga- tion, experts, psychological or social work support, etc. are not provided. While some legal aid providers receive a fixed fee for each case, or for each ac- Payments to legal tion they take on a case, others are full-time salaried employees in institutions aid providers funded by the State. 14

15 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is to persons arrested and detained on criminal available charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime and victims of violence against women. obliged to provide provide legal aid to all persons who meet a finan- The State is cial threshold, children, persons with physical, intellectual and mental disabilities, internally displaced persons and refugees, and persons whose mother tongue is not the language of official proceedings. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, or at least during questioning, before formal changes are filed. Legal aid is provided during 75-90% trial, for any appeal or cassation, and for representation of prisoners in cases Proportion of criminal court cases involving serious disciplinary charges. (2013) In practice however, it is not prohibited for the police to interview someone in the absence of a lawyer. This can be problematic, as the police sometimes ques- tions a person first as a witness, and determines the person to have a right to le- gal aid only after the witness has incriminated him/herself. 20% In criminal cases, the same provider does not represent the accused/suspect Criminal cases which received at all stages of the case. Rather, legal aid providers specialize in representation State-funded legal aid and which at particular stages of a case, and a new provider enters the case at each subse- were acquitted after trial (2013) quent procedural stage. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely 10% than private lawyers to ‘give advice to the suspect/defendant in private before Criminal cases which received any contact with a state justice official'. State-funded legal aid and which were resolved pursuant to a plea Furthermore, independent national experts say that the most influential agreement, procedural agreement factor in reaching a dismissal of charges or acquittal in criminal cases is ‘a well or expedited trial (2013) prepared and/or highly skilled lawyer’. 15

16 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption 50% Judicial independence People who believe that the police Bias against marginalized people always or often respects the basic rights of suspects Inadequate ADRs WJP Rule of Law Index 2015 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold, as well as to children and women. Estimated demand for legal aid services in civil cases 3 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 40% Child custody issues Marital disputes Property issues From respondents For what actions is a party eligible for legal aid? Under the law, legal aid should be provided during trial, and to guarantee the provision of protective services to victims of violence. Public interest litigation / class action cases: 60% State-funded legal aid is not provided for public interest litigation and class action cases (to address discrimination, labour rights, environmental protection, From complainants health cases, etc.) and so far, little demand for legal aid to support such initiatives has been expressed. 16

17 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious According to national experts, women often lack awareness about the availabil- Women’s access ity of legal aid services at little or no cost, and they may not know where to find to legal aid services legal assistance. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings, but court support ser- vices, such as interpretation and translation of documents, are not provided. The justice system has specialized courts and judges, as well as specialized pros- Access to legal aid ecutors, to represent child victims, child witnesses or suspected and accused for children children, down to the regional level. When representing children, legal aid pro- viders sometimes reach out to protection service practitioners to assist the child throughout proceedings. In criminal cases where children are represented by legal aid providers, national experts note that there is no noticeable difference in the use of diversion, alter- natives to pre-trial detention and alternatives to imprisonment as compared to children who are not represented at all. 17

18 Global Study on Legal Aid – Country Profiles Afghanistan Asia-Pacific Informal justice proceedings mainly handle marital or family disputes, land and Legal aid and informal property disputes, and minor criminal cases. justice systems National experts explain that people prefer to resolve disputes through the informal justice system because it is less time-consuming and informal tribu- nals are more conveniently located, especially for those living in remote areas. Furthermore, people are generally more confident that informal justice proceed- ings will place the wealthy and the poor on equal footing: they trust that judg- es or decision-makers in informal justice mechanisms, because they know the parties, will better judge what is a just outcome that is acceptable to all parties. Informal justice mechanisms do not allow a lawyer or paralegal to provide assistance in formal mediation or alternative dispute resolution processes. Nonetheless, a mechanism is in place to facilitate referrals between the formal and informal justice systems. Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a qual- the quality of legal ified legal aid provider arrives. aid services A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he lacks expertise in the law or skills required by the specific case. The Ministry of Justice and the legal aid board are formally responsible for mon- Monitoring itoring the quality of legal aid services. and data collection on the quality There is an acute shortage of data in the justice system. For instance, no data of legal aid services is available on the number of criminal or civil cases filed in court where State- funded legal was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a case’s transfer to court. 18

19 China Asia-Pacific China 1.364 billion Population Unitary government system 54% 97% 93% 46% Male literacy rate Female literacy rate Urban population Rural population 0.943 $7,400 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW MID/LOW MID/LOW MID/HIGH LOW HIGH MID MID/HIGH N/A N/A 0.727 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.8 0.55 0.7 0.7 0.55 0.8 LOW LOW VERY HIGH MID HIGH VERY HIGH MID HIGH

20 Global Study on Legal Aid – Country Profiles China Asia-Pacific Legal Aid at a Glance in China 2013 $0.19 Within the past 5 years When was the last assessment Annual expenditure The legislative process for the of legal aid needs conducted adoption of a specific law on on legal aid per capita in 2013 legal aid was initiated in 2013 by the Ministry of Justice People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 31 A lot pay a debt, during the past 3 years Some 33 Citizen survey, WJP Rule of Law Index 2015 24 A Little 12 No Trust N/A 3 3 100 % Sample size: N/A 0% Challenges in accessing legal aid Priority areas for support Legislative drafting advice h Shortage of lawyers  h Low pay for legal aid work  Development of action plans/policies The public expenditure on legal aid services has been h  Development of quality criteria for legal aid providers increasing, but still cannot keep up with the evergrowing Establishing paralegal systems Institutional support demand of services  Legal aid is sometimes geographically inaccessible Training h The quality of legal aid services could be further improved h 20

21 Global Study on Legal Aid – Country Profiles China Asia-Pacific Legal framework The right to legal aid was first recognized in 1996 with the establishment of Right to legal aid the National Legal Aid Center by the Ministry of Justice, which became respon- sible for the management and supervision of legal aid assistance nationwide. The right to legal aid is guaranteed in: The first set of Regulations on Legal Aid was adopted in 2003. In 2008, Legal Aid Constitution 2 Department was established within the Ministry of Justice for national policy- Separate law on legal aid 2 Law on judicial procedure 2 making and oversight. 2 Law on the judiciary Law on lawyers 2 In June 2015, the General Office of the Communist Party of China (CPC)’s Central 2 Civil procedure code Committee and the General Office of the State Council issued a document 2 Criminal procedure law titled “Opinions on Improving the Legal Aid System”, which calls for specific 2 Implementing regulations on reform measures, including the following: (1) Expanding the scope of legal aid in legal aid civil and administrative cases and enhancing the provision of legal aid in crimi- nal cases; (2) Improving the quality and standardization of legal aid services; and (3) Increasing financial support to the legal aid system and strengthening insti- tutional capacities. The legislative process for the adoption of a specific law on legal aid was initiated in 2015 by the Ministry of Justice. State-funded legal aid is available at national, regional and local levels. For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation (in litigation and labour arbitration), legal assistance, and as part of legal aid provision of legal information. Legal aid lawyers also provide general assistance in navigating the justice system and in executing legal documents. Specialized legal aid services are provided to disadvantaged population groups, including persons with disabilities, internally displaced persons, children, wom- en, the elderly, family of military service members, and migrant workers. Legal aid is provided upon request from the person who wants legal aid, or from Process for obtaining the police, the prosecutor, or the institution that oversees appointment of legal legal aid aid providers. The court presiding over a case must also inquire and assess eligi- bility during the first appearance of the parties. In both criminal and civil cases, a person must prove her/his eligibility by prov- ing status as a recipient of welfare or state subsidies, by demonstrating family hardship, or by providing evidence of low income (if employed) or membership of a protected group. It may also be determined by officials that the interests of justice require the provision of legal aid. In criminal cases specifically, no proof of eligibility is necessary when the State is obliged to provide legal aid by law. Entitlement to legal aid may also be deter- mined on the basis of the gravity or complexity of the matter. 21

22 Global Study on Legal Aid – Country Profiles China Asia-Pacific A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in the past to legal aid year, and provided specific contact details of relevant offices to go for legal as- sistance. Independent national experts estimate that the general population is ‘somewhat knowledgeable’ about legal aid services. Delivery model The Ministry of Justice oversees the state legal aid scheme by setting the nation- Legal aid authority al legal aid strategy and policy, supervising the legal aid providers and maintaining performance standards, amongst other responsibilities. China’s legal aid system uses both private practitioners (both private law firms Organisation and non-governmental legal service institutions) and state-employed public de- of legal aid services fenders to provide legal aid services, in both criminal and civil cases. At the provincial level, government-sponsored legal aid services are led “justice bureaus”. These bureaus manage the work of legal aid centres at the dis- trict, county and township level, as well as legal aid work stations in some ur- ban neighborhoods. By 2009, China had over 3,2000 legal aid centres and 55,000 work stations. Under the Chinese 1996 Lawyers Law and the 2003 Regulations for Legal Aid, ev- ery lawyer is expected to provide legal assistance for the poor when called upon by the legal aid office. Law firms that refuse to accept legal aid cases may receive a warning and have their businesses suspended for up to three months in serious cases. Lawyers are also encouraged to provide pro bono legal services. Provision of pro bono legal services is a condition for membership in the All China Lawyers Association, provides lawyers with discounts on bar membership in some prov- inces and various benefits, and tax deductions are offered by the government. Legal aid providers are assigned to criminal cases through the courts, the police Mechanism for or the Legal Aid Centre, who contact providers in the order listed on a duty ros- assigning legal aid ter. There are also legal aid providers on duty in courts, police precincts and de- providers tention centres and prisons in certain localities. It takes no time for a legal aid provider to appear after notice is given that legal aid is needed in a criminal case. 22

23 Global Study on Legal Aid – Country Profiles China Asia-Pacific Legal aid services are available in both urban and rural areas. Although the qual- Accessing legal aid in ity of legal aid services depends on each individual legal aid provider, it tends to urban vs. rural areas be better in urban areas where more lawyers are available. Generally, legal aid tends to be more accessible in the eastern coastal areas, where more law firms are located. In Western and inland areas, there are fewer lawyers and accessibility cannot be guaranteed. Service providers Lawyers 1/5,033 1/231,186 and other providers Licensed practicing Full-time /people lawyers legal aid lawyers /people University-based Paralegals law clinics To deliver legal aid services in civil and criminal cases, legal aid providers must Qualifications required have a law degree, a professional license, and a proof of passing a professional examination (bar examination). They must also be members of the bar associ- ation, have completed an internship with a lawyer, be in a contractual relation- ship with the agency that oversees the legal aid board, and be registered with the State-authorised roster of legal aid providers. The requirement to undergo periodic skills training and periodic testing is im- posed by the bar association on its members and by the legal aid administra- tion on all legal aid providers. The State allots funds to cover such costs. 23

24 Global Study on Legal Aid – Country Profiles China Asia-Pacific Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 Yes, but there is ambiguity in the law. Article 21 of the Regulations on Legal Aid suggests that non-lawyers are allowed to provide legal aid, but does not provide further guidance on the role of such providers, or the qualifications required. In general, paralegals are allowed to provide legal advice on a one-time or two- time basis, as well as general assistance in navigating the justice system, in both criminal and civil cases. In civil and administrative cases specifically, paralegals are also allowed to represent legal aid recipients before a prosecutor, court or tribunal, under a lawyer’s supervision. Does any public revenue fund paralegals? Yes. The main source of funding for legal aid is from the government’s budget and from the Public Welfare Fund on Legal Aid from Lottery. China has also es- tablished the China Legal Aid Foundation, which manage endowments from within China and abroad. Can paralegals engage in litigation? In China, paralegals are allowed to represent legal aid recipients in civil and ad- ministrative cases under a lawyer's supervision. Such practice is not permitted in criminal cases. Are there boards that monitor community paralegals? While there are no specific bodies that monitor paralegals, Article 4 of the Regulations on Legal Aid provides that the Ministry of Justice, via its Legal Aid Center, is in charge of evaluating the quality of legal aid services. Finances Free primary legal aid services can be obtained at the offices of State-funded Costs to recipients legal aid institutions, legal advice centres in cities and towns, and civil society organisations. The interested party can also contact the bar association which maintains a roster of qualified lawyers available to provide legal advice, or call the hotline established by the Legal Aid Centre. Beyond primary legal aid, the State covers the cost of other legal aid services in both criminal and civil cases to those meeting eligibility criteria. 24

25 Global Study on Legal Aid – Country Profiles China Asia-Pacific Legal aid in the annual justice budget $0.19 Legal aid budget per capita in 2013 The national budget for legal aid is determined by the Ministries of Finance and Justice, the judiciary, the Legal Aid Centre, international organisations that sup- 59% port legal aid in China, and the regional and local governments. Annual legal aid budget increased There exists a separate funding mechanism to cover the cost of specialized legal by 59% from 2010 to 2013 aid services provided to specific population groups (such as women, children, etc.), which receives considerable support from international donors. The State covers the cost of independent forensic experts and psychological or social work support. In both criminal and civil cases, legal aid providers receive a fixed fee for each Payments to legal case they work on, or can be paid on an hourly basis for actions that the State aid providers has identified. The legal aid institution that employs the legal aid provider is responsible for disbursing payment (although sometimes, payment is done through the national or local bar association.) Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, and victims of crime. obliged The State is to provide legal aid to persons who meet a financial thresh- old, and minors, persons with certain physical or mental disabilities, persons who face potential life imprisonment or death penalty, in cases when these per- sons have not yet entrusted a defender. 25

26 Global Study on Legal Aid – Country Profiles China Asia-Pacific At what stage of a criminal case? Under the law, qualified legal assistance may be requested from the moment a law enforcement representative restricts the suspects/defendant’s freedom, or at least from the moment charges are officially filed. It is also provided during trial and for any appeal or cassation, as well as for representation of prisoners in cases involving serious disciplinary charges. It is not prohibited by law for the police to interview a person in the absence of a lawyer, and it is somewhat common for pre-trial detention to be used, even when suspects have access to legal aid services. 88% To what extent are legal aid services in criminal cases seen as effective? People who believe that the police Independent national experts estimate that legal aid lawyers are more likely always or often respects the basic than private lawyers to perform certain actions, such as ‘presenting arguments rights of suspects WJP Rule of Law Index 2015 in favour of a suspect’s or defendant’s release pre-trial’, or ‘conducting investi- gations to establish doubt about the suspect’s or defendant’s guilt even if s/he may be guilty’. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘a poorly prepared prosecutor’, ‘the judge’s objective analysis of evidence and tes- timony’, and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious 26

27 Global Study on Legal Aid – Country Profiles China Asia-Pacific Who is eligible? Legal aid in civil cases Under the law, legal aid is available to persons who meet a financial threshold, and when the law notes that the interests of justice require it. 4 types of civil cases for which legal aid services are most Estimated demand for legal aid services in civil cases commonly sought and for which State-funded legal aid is available Labor disputes Child custody issues, marital disputes and support for the elderly issues 40% From respondents Claims for State services, Traffic accidents including social security Legal aid services are also commonly sought for work injury cases. For what actions is a party eligible for legal aid? 60% Further to the provision of primary legal aid, more specific legal aid can be offered to assist with drafting and filing complaints and responses, gaining From complainants access to State agencies, protecting victims of violence, conducting deposi- tions or other official queries, negotiating between parties, and drafting mo- tions. Legal aid can also be provided throughout proceedings, including for any appeal or cassation. Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for public interest litigation and class action cases addressing labour rights, discrim- ination, consumer rights, health and environmental protection. Staff lawyers at the Legal Aid Centre sometimes uniformly challenge practices that have damaged or have a high risk of damaging the interest of the public. 3% In 2013, State-funded legal aid was provided in roughly 3% of civil cases 27

28 Global Study on Legal Aid – Country Profiles China Asia-Pacific How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious With the recently passed Law Against Domestic Violence, legal aid services to Women’s access female victims of violence (including victims of sexual and gender-based vio- to legal aid services lence) is now guaranteed. Female victims of violence receive legal aid services in all legal proceedings, as well as court support services, such as interpretation and translation of documents. Specialized legal aid services for women are provided through a collabora- tion between the Legal Department in the All China Women’s Federation, the National Legal Aid Center and the Ministry of Justice. Civil society organisations also provide legal aid services to women, and they often do so through the le- gal aid centres. Specialized legal aid stations for women are also available, where they can get services from legal aid providers with experience in protecting women's rights. According to national experts, women continue to face a number of challenges: more often than men, they do not know where to find legal assistance, or may not understand how legal aid services can help them. Not all women are aware that legal aid services are available at little or no cost, and court processes can be time-consuming. Women may also find it difficult to confide in a male legal aid provider and share intimate information related to a case. For all of these reasons, national experts report that it is not uncommon for women to prefer not to seek out legal assistance. 28

29 Global Study on Legal Aid – Country Profiles China Asia-Pacific The justice system has specialized courts, judges, prosecutors, lawyers and para- Access to legal aid legals to work with child victims, child witnesses, and suspected and accused for children children. When representing children, legal aid providers often reach out to parents, psychologists and other childcare professionals for support to assist the child throughout proceedings. According to independent national experts, there is no noticeable difference regarding the use of diversion in cases where children are represented by legal aid providers (incl. those specialized in children’s rights) and in cases where children are represented by private lawyers. However, experts report that alter- natives to pre-trial detention and alternatives to imprisonment are more fre- quently used when children are represented by legal aid providers, compared to when children are represented by private lawyers. Such measures are found to be even more frequently used when children are represented by legal aid providers specialized in children’s rights. Informal justice proceedings are typically used to resolve disputes related to Legal aid and informal marriage or family, land and property, inheritance, informal contracts and labour justice systems agreements. According to national experts, people prefer to resolve disputes through infor- mal justice proceedings because they take less time, because informal tribunals are more conveniently located, and because people understand better how they work. There is also a general perception that judges or decision-makers in informal proceedings can better judge what is a just outcome acceptable to all parties, since they know the parties involved. Informal justice mechanisms allow a lawyer or paralegal to provide assistance in formal mediation/alternative dispute resolution processes, and there are mech- anisms that allow cases to be referred between the formal and informal justice systems. 29

30 Global Study on Legal Aid – Country Profiles China Asia-Pacific Quality safeguards Legal aid providers must adhere to specific quality and performance standards Accountability for as well as ethical rules established by the bar association. the quality of legal aid services Once a legal aid provider is appointed to a case, s/he almost always remains on that case until it is resolved — except when the original lawyer becomes un- available or is unqualified to represent the suspect/defendant. If no legal aid provider arrives, or if a legal aid provider is unprepared or unquali- fied, the proceeding is postponed. In both criminal and civil cases, if a party is de- nied access to legal aid, s/he has a right to appeal that decision. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to a conflict of interest with the legal aid recipient. Formal responsibility of monitoring the quality of legal aid services rests with Monitoring the Legal Aid Department and the National Legal Aid Centre, which are both and data collection under the Ministry of Justice and establish a set of standards for quality assess- on the quality ment. Samples of legal aid cases are reviewed and the performance of legal aid of legal aid services providers is monitored at provincial levels. Data for monitoring the quality of legal aid services is collected through assess- ments by justice actors, through the review of complaints filed by legal aid re- cipients, and through the monitoring of services provided in court. There are considerable data gaps in the justice system. For instance, although the data on the number of children receiving legal aid services is recorded, such data on specialized services need to be more detailed.children is not record- ed separately and no data is available on case resolution prior to a cases’ trans- fer to court. 30

31 Japan Asia-Pacific Japan 127.1 million Population Unitary government system 93% 7% N/A N/A Rural population Female literacy rate Male literacy rate Urban population $42,000 0.961 GNI per capita Gender Development Index 0.975 0.95 0.925 0.9 $1,045 $4,126 $12,736 LOW MID/LOW MID/HIGH MID/LOW MID/HIGH HIGH HIGH LOW MID -12.4% 0.780 0.891 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.7 0.55 0.8 0.7 0.8 0.55 LOW LOW VERY HIGH MID HIGH MID HIGH VERY HIGH

32 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific Legal Aid at a Glance in Japan 2004 More than five years ago N/A Annual expenditure When was the last assessment The latest reform of the legal aid system was carried out in 2004 on legal aid per capita in 2013 of legal aid needs conducted People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 54 pay a debt, during the past 3 years Some 39 Citizen survey, WJP Rule of Law Index 2015 A Little 7 No Trust 0 28% 3 3 Sample size: 36 0% 100 % Priority areas for support Challenges in accessing legal aid Shortage of lawyers, especially outside urban areas h N/A h People sometimes do not know where to find legal assistance Covering the cost of police, prosecutors and judges h is generally prioritized over spending State funds on lawyers 32

33 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific Legal framework The right to legal aid was first recognized in 1880. Right to legal aid The most recent reform of the legal aid system took place in 2004. The Ministry The right to legal aid is guaranteed in: of Justice, the legislative branch and the bar association played an instrumen- Constitution 2 tal role in this reform. 2 Separate law on legal aid Law on judicial procedure 2 State-funded legal aid is available at national, regional and local levels. Criminal procedure law 2 For both civil and criminal cases, legal aid is provided in the form of legal as- Services included sistance, legal advice, legal representation (before a court), general assistance as part of legal aid with navigating the justice system, and assistance with the execution of legal documents. The process for obtaining legal aid is initiated upon request from the person Process for obtaining who wants legal aid. The court may appoint a counsel ex-officio if the accused legal aid does not have the assistance of a counsel for her/his defence, and it is deemed necessary. To prove eligibility to receive legal aid in both criminal and civil cases, a person must prove status as recipient of welfare or must provide evidence of low in- come (e.g. submitting a report on personal financial resources in criminal case; tax filing for the previous year in civil cases). A legal aid applicant must also provide proof of Japanese citizenship, and proof that his/her claim has merit. No proof is necessary when the State is obliged to provide legal aid services un- der the law in civil cases. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15. to legal aid Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 33

34 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific Delivery model The Ministry of Justice and an independent self-governing legal aid administration Legal aid authority have the chief responsibility for the management of legal aid. Legal aid services in criminal and civil cases are mainly organised through the Organisation Ministry of Justice and an independent legal aid administration. of legal aid services Some legal aid lawyers are full-time salaried employees of the legal aid ad- ministration. Other legal aid lawyers provide services as needed on a part-time contractual basis with the legal aid administration. Legal aid services are also provided through schemes, as several law firms make it a require- pro-bono ment. The bar association provides incentives for lawyers to engage in pro bono work, such as discounts on membership. The independent legal aid administration maintains a duty roster. Mechanism for assigning legal aid providers Legal aid services are available in rural areas. Accessing legal aid in urban vs. rural areas 34

35 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific Service providers Lawyers 1/3,488 N/A and other providers Licensed practicing Full-time lawyers legal aid lawyers /people /people 1/5,868 University-based people Certified judicial scrivener/ law clinics Students at university-based law clinics In Japan, "certified judicial scriveners" are are authorised to provide only those legal allowed to provide legal advice, as well as aid services that a faculty member or general assistance in navigating the justice practicing lawyer supervises. system. They can engage in the business of carrying out legal representation of a client in connection with the procedures at a summary court. Legal aid providers must show proof of passing a professional examination (bar Qualifications required examination). They must also be members of the national bar and have a con- tractual relationship with the agency that oversees the administration of legal aid. To become a "certified judicial scrivener", he or she must complete a train- ing course for the Representation Services for Litigation at Summary Courts, etc. and be certified by the Minister of Justice. Legal aid providers are not required to engage in continuing education or skills training, but the State allots some funds to this end. Legal aid providers are re- quired to undergo specialized training to qualify for work with children and the elderly. 35

36 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific Finances Primary legal aid services are available at the office of the public defender and Costs to recipients other State-funded institutional legal aid providers, such as legal advice centres in city and/or town administrative offices. In Japan, legal consultations for peo- ple with financial difficulties are free of charge in civil legal aid. In principle, legal aid costs in criminal and civil case are borne by users of legal services but there are cases where legal aid services free of charge are available. Legal aid in the annual N/A justice budget Legal aid budget per capita in 2013 -8% Annual legal aid budget decreased by 8% from 2010 to 2013 In 2013, the legal aid budget Legal aid is a separate component in the annual justice budget. The budget accounted for 29% of the annual for legal aid is determined by the parliament and the ministries of Finance and budget for prosecution of Justice, in consultation with the legal aid administration. criminal cases The cost of specialized legal aid services and additional services (such as in- dependent investigations, experts, psychological/social work support) are also covered by the State. In criminal and civil cases, some legal aid lawyers work full-time in institutions Payments to legal funded by the State. Those who provide services on a part-time contractual ba- aid providers sis with the legal aid administration receive a fixed fee for each action they take on a case. Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons arrested and detained on In criminal cases, legal aid is criminal charges, persons charged with a criminal offence, and , if they meet the 36

37 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific obliged criteria, victims of crime. The State is to provide legal aid when the ac- cused is unable to secure the assistance of a counsel for her/his defence, be- cause of indigence or other reasons. Legal aid is also provided to suspects who meet a financial threshold, and to suspects facing a potential prison sentence or death penalty. At what stage of a criminal case? It is not prohibited for the police to interview a person in the absence of a lawyer. It is somewhat common for pre-trial detention to be used even when suspects have access to legal aid services. 97% To what extent are legal aid services in criminal cases seen as effective? People who believe that the police always or often respects the basic Independent experts estimate that legal aid lawyers are less likely than private law- rights of suspects yers ‘to present arguments in favour of a suspect’s/defendant’s release pre-trial’ and WJP Rule of Law Index 2015 ’to give advice to the suspect/defendant in private before any contact with a State justice official’. Experts identify ‘the strength of the evidence, ‘the judge’s objective analysis of ev- idence and testimony’ and ‘a well-prepared and/or highly skilled lawyer’ to be amongst the most influential factors in reaching a dismissal of charges or acquit- tal in criminal cases. How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention 25-50% Delay of cases Proportion of criminal court cases Poor judicial decisions (2013) Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious 37

38 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons meeting a financial threshold, and based on the merit of the party’s claim. Legal aid services are also available to children and persons with disabilities. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Property issues Marital disputes Child custody issues Tort claims Contractual disputes For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with the drafting or filing of a complaint or a response, to gain ac- cess to State services, and to provide victims of violence with protective servic- es. Legal aid can also be provided throughout proceedings. Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class ac- tion cases, but national experts observe that there is public demand for such ini- tiatives to address cases related to discrimination, labor rights, consumer rights, environmental protection, and health. 38

39 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious According to national experts, women may not always understand how legal Women’s access aid services can help them and may prefer not to seek out legal assistance as to legal aid services they see court processes as too time-consuming. A particular challenge faced by women relates to the financial criteria for eligibility to legal aid, which often con- siders overall household income rather than women’s (considerably lower) in- dividual income. National experts also note that women may find it difficult to confide in a (generally male) legal aid provider and share intimate information related to a case. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in most legal proceedings, but court support ser- vices, such as interpretation and translation of documents, are provided only in some proceedings. The justice system has specialized courts, judges, prosecutors and police units Access to legal aid specifically dedicated to handling cases involving suspected or accused chil- for children dren. When representing children, legal aid providers often reach out to parents, social workers and other childcare professionals for support to assist the child throughout proceedings. When comparing criminal cases where children are represented by legal aid providers, and cases where children are represented by private lawyers, nation- al experts find that there is no noticeable in the use of diversion, alternatives to pre-trial detention, and alternatives to imprisonment. 39

40 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific When children are represented by legal aid providers specialized in children’s rights, national experts observe that they perform better than non-specialized legal aid providers in achieving diversion, alternatives to pre-trial detention, and alternatives to imprisonment more frequently. 50-75% 35-50% In 35-50% of cases when children are In 2013, in 50-75% of cases where suspected or charged with a criminal a child was found culpable, an offence, the case is diverted from alternative to imprisonment was the formal justice system without imposed trial (e.g. through a warning or an apology) Informal justice proceedings typically handle marital or family disputes, child Legal aid and informal custody issues, and inheritance disputes. justice systems According to national experts, people prefer to resolve disputes through infor- mal justice proceedings because they trust that they are more likely to lead to a negotiated outcome that is acceptable to all parties, as judges or decision-mak- ers in informal proceedings usually know the parties and can better judge what is a just outcome. People also appreciate the fact that informal justice mecha- nisms are less time-consuming. Informal justice mechanisms allow for a lawyer to provide assistance in formal mediation and alternative dispute resolution processes, and there is a mecha- nism that allows cases to be referred between the formal and informal justice systems. 50% To provide assistance in informal justice processes, legal aid providers must have a law degree, and to assist in formal mediation, they must be a member of the Approximately 50% of disputes bar. are resolved through formal mediation or alternative dispute resolution processes (2013) 40

41 Global Study on Legal Aid – Country Profiles Japan Asia-Pacific Quality safeguards If a person receives legal services, but the legal aid provider is unprepared or un- Accountability for qualified, the proceedings are deemed invalid or postponed. the quality of legal aid services A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to incompatibility or a conflict of interest with the legal aid recipient. After a legal aid provider is appointed, the same provider almost always remains in the case until its resolution. Formal responsibility for monitoring the quality of legal aid services rests with a Monitoring peer review team organised by the legal aid administration or bar association. and data collection Data is mainly collected through the review of complaints by legal aid recipi- on the quality ents about a legal aid provider’s actions. of legal aid services 41

42 Nepal Asia-Pacific Nepal 28.17 milion Population Federal government system 18% 72% 49% 82% Rural population Female literacy rate Male literacy rate Urban population $730 0.908 GNI per capita Gender Development Index 0.975 0.95 0.925 $1,045 $4,126 $12,736 0.9 MID/LOW MID/HIGH HIGH LOW MID/HIGH MID HIGH MID/LOW LOW -26.8% 0.401 0.548 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 HIGH LOW MID HIGH VERY HIGH MID LOW VERY HIGH

43 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Legal Aid at a Glance in Nepal $ 0.01 US < Within the past 5 years 2015 When was the last assessment Annual expenditure The latest reform of the legal aid of legal aid needs conducted on legal aid per capita in 2013 , with system took place in 2015 the adoption of the new Constitution of Nepal which recognizes free legal aid as a fundamental right of all Nepalese citizens People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 11 pay a debt, during the past 3 years Some 53 Citizen survey, WJP Rule of Law Index 2015 A Little 32 No Trust 5 22% 3 3 100 % 0% Sample size: 60 Priority areas for support Challenges in accessing legal aid Legislative drafting advice h Low pay of lawyers for legal aid work  h People do not know where to find legal assistance,  Development of action plans/policies Development of quality criteria for legal aid providers largely because it is often geographically inaccessible  Establishing paralegal systems h There is a limited number of lawyers, especially outside  Institutional support urban areas h  Training People prefer to resolve issues through the informal justice system, in which legal professionals rarely participate People do not have confidence in the quality h of legal aid services 43

44 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Legal framework The Nepalese legal system has been providing legal aid to the poor and to mar- Right to legal aid ginalized and disenfranchised groups since the 1960s. The right to legal aid is guaranteed in: The new Constitution of Nepal, which came into effect in September 2015, rec- The Constitution 2 ognizes free legal aid as a fundamental right of Nepalese citizens, especially for 2 A separate law on legal aid the poor, women and socially marginalized communities. 2 Implementing regulations for the law on legal aid The Government of Nepal also enacted in 1997 a separate Legal Aid Act which 2 Law on judicial procedure is currently being implemented across all districts. The latest amendment of this 2 Law on the judiciary Act further specifies the scope of eligible beneficiaries (e.g. specifically refer- ring to conflict-affected and gender-based violence survivors) and the struc- ture of the Legal Aid Committees at national and local levels (e.g. state institu- tions for the protection of women and children are now represented on the committees.) State-funded legal aid is available at national, regional, and local levels. For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, legal assistance (before national courts), and provision of as part of legal aid legal information. Legal aid lawyers also provide general assistance in navigat- ing the justice system. Specialized legal aid services are provided by the State to indigent persons (with an annual income of less than US$400), children, women, the elderly, per- sons with physical or mental disabilities, internally displaced persons, ethnic or religious minorities, and LGBT. Legal aid is provided upon requests from the person who wants legal aid, or Process for obtaining from the police, prosecutors, legal aid providers, or the bar association. Legal Aid legal aid Committees at local level are also authorised to determine whether an appli- cant is entitled to legal aid. In both criminal and civil cases, a person must prove her/his eligibility by prov- ing status as a recipient of welfare or state subsidies, by demonstrating fami- ly hardship (e.g. multiple children, single parent, family member disability, etc.), or by providing evidence of low income or membership of a protected group (such as migrants, children, displaced persons, refugees, etc.) Legal aid can also be provided when State officials demonstrate that the interests of justice re- quire it in a given case, or when an applicant proves that his/her claim has merit. 44

45 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the Ministry of Law and to legal aid Justice in the past year, down to the village level, and provided specific contact details of relevant offices to go for legal assistance. The Nepal Bar has is also in- volved in building legal awareness across the country. Independent national experts estimate that the general population is ‘not at all knowledgeable’ about legal aid services. Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Central Legal Aid Committee (“Central Committee”) and the District Legal Aid Committees (“District Committees”). These committees oversee and coordi- nate the appointment mechanisms, establish the national legal aid strategy and policy, and monitor compliance of legal aid providers with government priorities. The Central Committee is constituted by the Law and Justice Minister, the chair- person of the Nepal Bar Council, the president of the Nepal Bar Association, one le- gal expert nominated by the Central Committee, and a secretary of the Nepal Bar Association. Each District Committee is constituted by the district’s government attorney, the president of the superior bar unit, two lawyers nominated by the District Committee, and a secretary of the superior bar unit. In both criminal and civil cases, legal aid services are organised through the Organisation Central Committee, the District Committees, as well as through pro bono of legal aid services schemes and civil society. The district, court of appeal and supreme courts have their own free legal aid scheme called the ‘paid lawyer system’. In criminal cas- es specifically, legal aid services are also organised through the bar association. Additionally, an Access to Justice Commission was recently established by the Judiciary to provide legal services to poor and vulnerable groups, and to sup- port legal awareness through a judicial out-reach programme. The Commission can also be requested by the courts to provide legal aid services to eligible applicants. Lawyers are encouraged to provide pro bono legal services through financial incentives offered to members of the bar association (e.g. discounts on mem- bership fees or tax deductions.) In some law firms, lawyers are obliged to en- legal aid work. gage in pro bono 45

46 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Legal aid providers are assigned to applicants through District Committees. It Mechanism for usually takes about 24 hours for a legal aid provider to appear after notice is giv- assigning legal aid en that legal aid is needed in a criminal case. providers Legal aid services are available in both rural and urban areas. While the quali- Accessing legal aid in ty of legal aid services depends on each individual provider, it tends to be bet- urban vs. rural areas ter in urban areas where lawyers have more independence to challenge the ac- tions of other justice actors. Legal aid providers in rural areas find it more difficult to oppose judges, police, prosecutors, and opposing counsel because they see them socially. Service providers Lawyers 1/1,641 1/153,934 and other providers Licensed practicing Full-time /people legal aid lawyers /people lawyers University-based Civil society Paralegals law clinics organisations Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). There is no formal requirement for them to undergo periodic skills training or testing. To be allowed to provide legal aid services, paralegals must complete a short course on legal representation and a professional paralegal training course ac- credited by the State. 46

47 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 No, not explicitly, however there are groups recognized by the State that per- form the functions of community paralegals. For instance, Paralegal Committees (PLCs) have been in place since 1999 as part of an effort to fight sex trafficking by educating at-risk women and children about their rights. The scope of their efforts has since expanded to combat other forms of exploitation and abuse of women and children. Since December 2012, PLCs have become a part of the Government of Nepal’s Integrated Women’s Development Programme, and new Gender-Based Violence Watch Groups (GBV-WGs) have been formed at the ward level. Does any public revenue fund paralegals? No, PLCs are funded from multilateral agencies and foreign governments, yet programmes with “Social Mobilizers,” which perform some functions of parale- gals, do receive some financing from the Government of Nepal. Can paralegals engage in litigation (with or without the help of lawyers)? No, paralegals cannot directly engage in litigation. Their role is limited to repre- sentation and accompanying the victim to the attorney. They also play an im- portant role in raising public awareness about the right to legal aid and the various services available. There are also instances of criminal offences being mediated by community paralegals. Are there boards that monitor community paralegals? There are boards that monitor social mobilizers, but none that monitor PLCs, al- though civil society and aid organisations exercise some oversight of PLCs. With regards to social mobilizers, they have to meet set qualifications and to adhere to a Code of Conduct which states that they must be unbiased in their work, un- affiliated with any political party, sensitive towards children, youths, disabled, and elderly people, and gender sensitive, amongst other requirements. 47

48 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Finances Primary legal aid services free of charge are available at the offices of the Central Costs to recipients Committee, District Committees, and civil society organisations. The bar associa- tion also has a hotline that individuals can call to receive legal advice. At national, regional, and local levels, the State covers all legal aid costs (includ- ing the cost of primary legal aid services) in both criminal and civil cases to those meeting eligibility criteria. Legal aid in the annual justice budget <$0.01 Legal aid budget per capita in 2013 Legal aid is a separate component of the annual justice budget, and the legal aid budget is determined by the Ministries of Finance and Justice, the judiciary and international organisations. Specialized legal aid services for disadvantaged population groups are funded by the State with substantial contributions from international donors. The State covers the cost of independent forensic experts and psychological or social work support. In both criminal and civil cases, legal aid providers receive a fixed fee for each Payments to legal case. aid providers 48

49 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Provision of legal aid Who is eligible? Legal aid in criminal cases to persons arrested and detained on criminal available Under the law, legal aid is charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime, and witnesses. The State is obliged to provide legal aid to persons who meet a financial thresh- old (US$400 per year). At what stage of a criminal case? Under the law, qualified legal assistance may be requested from the moment a State agency begins consideration of whether to impose pre-trial detention, or at least from the moment charges are officially filed. It is also provided dur- ing trial, and for any appeal or cassation. Prisoners can secure legal aid for repre- sentation in cases involving serious disciplinary charges, to seek consideration of probation, or in relation to social rehabilitation/reintegration matters after re- lease from prison. The law does not prohibit the police or other justice actors from interviewing or obtaining incriminating evidence from a witness/suspect/defendant in the absence of a lawyer. However, police and prosecutors usually wait for a legal aid provider to arrive; but if it takes too long, the questioning begins even in the ab- sence of a provider. It is somewhat common at the national and local levels and very common at the regional level for pre-trial detention to be used even when suspects have access to legal aid services. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are less likely than private lawyers to perform certain actions, such as ‘presenting arguments in fa- vour of a suspect’s or defendant’s release pre-trial’, or ‘conducting investigations to establish doubt about the suspect’s or defendant’s guilt even if s/he may be guilty’. 55% Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the People who believe that the police judge’s objective analysis of evidence and testimony’, and ‘the strength of the always or often respects the basic evidence’ to be amongst the most influential factors in reaching a dismissal of rights of suspects charges or acquittal in criminal cases. WJP Rule of Law Index 2015 49

50 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to children and to poor and socially marginal- ized groups (persons who meet a financial threshold of US$400 per year). 5 types of civil cases for which legal aid services are most Estimated demand for legal aid commonly sought and for which State-funded legal aid is available services in civil cases Child custody issues Labor disputes Property issues 30% Dispute resolution Administrative matters From respondents and claims for State services proceedings or mediation For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with drafting and filing complaints and responses, gaining access to State agencies, protecting victims of violence, conducting deposition (or oth- er official queries), conducting negotiations between parties, and drafting mo- 70% tions. Legal aid can also be provided throughout mediation and during trial, in- cluding for any appeal or cassation. From complainants 50

51 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation / class action cases (e.g. to address cases of discrimination, labor rights, consumer rights, etc.), but independent national experts are of the view that there is public demand for such cases addressing labour rights, discrimination, consumer rights, health and environmental protection. The Nepal Bar and human rights lawyers are ac- tively pursuing public interest litigation and have been instrumental in address- ing long-standing discriminatory practices. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious Police offices have established a ‘women and children unit’ which is specifically Women’s access dedicated to providing basic legal aid services to poor and marginalized women. to legal aid services Female victims of violence (including victims of sexual and gender-based vi- olence) receive dedicated legal aid and court support services. To protect the confidentiality of victims, in-camera hearings are currently being established in courts across the country, down to the community level. Guidelines for such hearings were developed in partnership with the National Judicial Academy. In spite of these advances, national experts stress that women continue to face several challenges. Means tests for eligibility to legal aid often consider overall household income rather than a woman’s income specifically, which tends to be considerably lower. Women often do not know where to find legal assistance or are unaware that legal aid services are available at little or no cost. Furthermore, there are very few female legal aid providers and women find it more difficult to 51

52 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific confide in a male legal lawyer and share intimate information related to a case. For all of these reasons, and because they see court proceedings as too time- consuming, women generally prefer to resolve issues through the informal jus- tice system or outside the court system, where legal aid has no role. Some courts have started to provide specialized services for child victims, child Access to legal aid witnesses, and suspected/accused children. When representing children, legal for children aid providers often reach out to parents, psychologists and other childcare pro- fessionals for support to assist the child throughout proceedings. In criminal cases, diversion away from judicial proceedings is usually used for suspected/accused children. National experts observe however that there is no noticeable difference regarding the use of diversion and of alternatives to pre- trial detention and to imprisonment in cases where children are represented by legal aid providers (whether specialized in children’s rights or not) or by private lawyers, or in cases where children are not represented at all. In criminal cases where legal aid is provided to children, legal aid providers ad- vocate for the legally binding requirement to ensure the presence of parents at all times, to provide child-friendly surroundings for any meetings with State jus- tice officials, and to communicate in simple language with the child about what is happening at every step of a case’s development. Legal aid providers also ad- vocate for children held in custody to be separated from adult detainees or in- mates, and for expunging juvenile criminal records. Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative and customary or religious mediation/adjudication dispute justice systems resolution processes, but there is no formal mechanism in place yet to allow cas- es to be referred between the formal and informal systems. Informal justice proceedings are typically used to resolve marital or family is- sues, child custody issues, land and property disputes, inheritance disputes, in- formal contracts, labour agreements, and minor criminal cases. People prefer to resolve disputes through informal justice proceedings because people under- stand better how they work, they take less time and usually lead to a negotiated outcome that is acceptable to all parties. Informal tribunals are also more con- veniently located. To provide assistance in both formal mediation/alternative dispute resolution processes and customary/religious mediation/adjudication processes, a legal aid provider must be a reputable member of the community. 52

53 Global Study on Legal Aid – Country Profiles Nepal Asia-Pacific Quality safeguards The Ministry of Law and Justice is currently developing a legal aid policy and Accountability for quality assurance mechanisms to enhance the accountability of legal aid ser- the quality of legal vice providers across the system. There are currently no guidelines or ethical aid services rules that legal aid providers are obliged to adhere to. Once a legal aid provider is appointed, s/he rarely remains on the same case un- til its resolution; rather, several lawyers usually get to represent a legal aid recipi- ent at different stages of the proceedings. If a legal aid provider does not arrive or is unprepared/unqualified, a replace- ment legal aid provider is asked to represent the party. This can sometimes be problematic as there are no formal means of assessing a legal aid provider’s qualifications or level of preparedness. Sanctions can also be applied against the unqualified or unprepared legal aid provider. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to a conflict of interest with the recipient. The quality of legal aid services provided is monitored by the Central Committee Monitoring and District Committees. Data for monitoring the quality of legal aid services is and data collection mainly collected through assessments carried out by justice actors, including on the quality the police, prosecutors and judges. of legal aid services There is an acute lack of data across the system. For instance, no data is available on the number of criminal or civil cases filed in court where State-funded legal aid was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a case’s transfer to court. 53

54 Thailand Asia-Pacific Thailand 67.73 million Population Unitary government system 49% 96% 96% 51% Male literacy rate Female literacy rate Urban population Rural population 1.000 $5,780 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW MID/LOW MID/LOW MID/HIGH MID LOW HIGH MID/HIGH -20.6% 0.576 0.726 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

55 Global Study on Legal Aid – Country Profiles Thailand Asia-Pacific Legal Aid at a Glance in Thailand $0.03 1974 Never conducted The latest reform of the legal aid Annual expenditure When was the last assessment system took place in 1974 on legal aid per capita in 2013 of legal aid needs conducted People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 27 A lot pay a debt, during the past 3 years 50 Some Citizen survey, WJP Rule of Law Index 2015 A Little 23 No Trust 0 12% 3 3 Sample size: 25 0% 100 % Challenges in accessing legal aid Priority areas for support  Legislative drafting advice h Low pay of lawyers for legal aid work h General perception that it is more important to cover Development of action plans/policies  Development of quality criteria for legal aid providers  the costs of the police, prosecutors and judges than Establishing paralegal systems to spend public funds on lawyers  The quality of services provided by legal aid lawyers is uneven h Institutional support Little support among the population for spending public h Training Establishing a central legal aid authority to better manage  funds to defend accused criminals People may not know where to find legal assistance the provision of legal aid services by the various actors h involved, and to monitor overall performance of the legal aid system 55

56 – Country Profiles Global Study on Legal Aid Thailand Asia-Pacific Legal framework The right to legal aid was first recognized in the Constitution of 1949. Right to legal aid The latest reform of the legal aid system took place in 1974. The right to legal aid is guaranteed in: State-funded legal aid is available at national, regional and local levels. 2 Constitution Law on judicial procedure 2 Law on police 2 Law on the judiciary 2 Law on the prosecution 2 Civil procedure code 2 2 Criminal procedure law 2 Law on pre-trial detention 2 Law on the penitentiary Implementing regulations for 2 the law on legal aid In both criminal and civil cases, legal aid is provided in the form of legal advice, Services included legal representation and legal assistance (before national tribunals). Legal aid as part of legal aid lawyers also provide general assistance in navigating the justice system. Specialized legal aid services are provided for disadvantaged population groups, including children, women, the elderly, migrants, refugees, asylum seekers or stateless persons, indigenous populations, and ethnic or religious minorities. According to Criminal Procedure Act 2004, it is a duty of the State to provide Process for obtaining legal aid upon request from the person who wants legal aid and upon request legal aid from the police. The court presiding over a case must also inquire and assess eligibility during the first appearance of the parties. In both criminal and civil cases, the agency or official responsible for the ap- pointment of legal aid providers may determine that the interests of justice re- quire provision of legal aid in any given case. No proof is necessary if the gravity or complexity of the matter requires legal assistance, or if the State is obliged to provide legal aid under the law. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15, and to legal aid provided specific contact details of relevant offices to go for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 56

57 – Country Profiles Global Study on Legal Aid Thailand Asia-Pacific Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Rights and Liberty Protection Department under Ministry of Justice. In both criminal and civil cases, legal aid services are organised through pub- Organisation lic defender institutions, through the bar association (i.e. the Lawyers Council of legal aid services Of Thailand Under The Royal Patronage), through pro bono schemes (the State offers tax deductions to lawyers doing pro bono work), through Legal Centres at universities, civil society organisations and local governments at city or village levels. The Lawyers Council of Thailand is required by law to develop a roster of duty Mechanism for legal aid providers in each region of the country. The roster is updated every 6 assigning legal aid months. The courts, the police and the lawyers’ council have access to this roster, providers and call them in the given order. The quality of legal aid services tends to be better in rural areas. Accessing legal aid in urban vs. rural areas 57

58 – Country Profiles Global Study on Legal Aid Thailand Asia-Pacific Service providers Lawyers 1/850 N/A and other providers Licensed practicing Full-time lawyers /people legal aid lawyers /people Paralegals University-based Paralegals are allowed to provide law clinics legal advice and general assistance in navigating the justice system in criminal, civil and administrative cases Legal aid providers must have a law degree and a contractual relationship with Qualifications required the agency that oversees administration of legal aid. They must complete an internship with a practicing lawyer, a judge or another State justice agency, and be registered in a State-authorised roster of legal aid providers. To be hired as a staff member of the institutional legal aid provider, they have to pass a sep- arate examination. The requirement to engage in continuing education and/or skills training is not imposed on legal aid providers. Public defender institutions supervise, coach and mentor private practitioners who take legal aid cases. They also organise training sessions for all providers of legal aid, including both staff and private lawyers. 58

59 Global Study on Legal Aid – Country Profiles Thailand Asia-Pacific Finances Primary legal aid services are available free of charge at the office of the public Costs to recipients defender, at legal advice centres in cities and towns, and at the offices of the bar association, which maintains a roster of qualified lawyers available to provide legal advice. Generally, legal aid service are available for free in criminal and civil cases for those meeting eligibility criteria. However, under certain circumstances, a legal aid recipient may be required to pay a percentage of the cost, as established by the law, as well as a bonus to the legal aid provider above the provider’s fee paid by the government or donor. Legal aid in the annual justice budget $0.03 Legal aid budget per capita in 2013 -34% $1.74 Annual legal aid budget decreased Annual budget per capita for prosecution by 34% from 2010 to 2013 of criminal cases in 2013 Legal aid is a separate component of the annual justice system budget. The national budget for legal aid is determined by the Parliament and the Ministry of Justice. The Lawyers Council of Thailand also participates in budgetary decisions. There exists separate funding mechanisms to cover the cost of specialized legal aid services provided to specific population groups (such as women, children, etc.), financed by the government, private actors and international donors. The State covers the cost of additional services such as independent expertise and psychological or social work support. In both criminal and civil cases, legal aid providers receive a fixed fee for each Payments to legal case. They can also be compensated for travel-related expenses. Legal aid pro- aid providers viders must submit reports to claim their fees. 59

60 Global Study on Legal Aid – Country Profiles Thailand Asia-Pacific Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons arrested and detained on crim- Under the law, legal aid is inal charges, persons charged with a criminal offence, victims of crime, and witnesses. obliged to provide legal aid to persons who meet a financial thresh- The State is old (US$430/month; there is no threshold for legal advice unrelated to prose- cution), as well as to children and persons who potentially face death penalty. At what stage of a criminal case? Under the law, legal aid is provided from the moment a law enforcement rep- resentative restricts the suspects/defendant’s freedom, or at least from the mo- ment charges are officially filed. The police is obligated to inform persons charged with a criminal offence of his/ 25-50% her right to legal aid. It is generally prohibited for the police to interview a per- Proportion of criminal court cases son in the absence of a lawyer, unless a person waives this right. In practice, the (2013) police and prosecutors wait a limited amount of time for a legal aid provider to arrive, but if it takes too long, the questioning begins even in the absence of a legal aid provider. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are less likely than private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/defen- dant in private before any contact with a state justice official’. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘having a legal aid lawyer’, ‘the strength of the evidence’, and ‘bribery/corruption’ to be amongst the most influential factors in reaching a dismissal of charges or 84% acquittal in criminal cases. People who believe that the police always or often respects the basic rights of suspects WJP Rule of Law Index 2015 60

61 – Country Profiles Global Study on Legal Aid Thailand Asia-Pacific How serious are the following problems in criminal courts in the city where you live? 3% According to national experts, WJP Rule of Law Index 2015 In 2015, pre-trial restrictive measures were imposed on 3% of Excessive pre-trial detention criminal cases filed in Trial Court, Delay of cases Appellate Court and Supreme Court (including pending cases from Poor judicial decisions previous years) Inadequate resources Inadequate criminal defence Corruption Judicial independence 1.09 Bias against marginalized people In 2013, the number of criminal Inadequate ADRs cases filed in court was 1.09 times the number of civil and 3 3 administrative cases Not very serious Very serious Who is eligible? Legal aid in civil cases Generally, there are no specific requirements to qualify for legal aid in civil and administrative cases. It is assigned by authorised agencies at their discretion. Estimated demand for legal aid Under certain circumstances, a person seeking legal aid may be required to services in civil cases meet a financial threshold (US$430/month; there is no threshold for legal ad- vice unrelated to prosecution). 0% 3 types of civil cases for which legal aid services are most From respondents commonly sought and for which State-funded legal aid is available Tort claims Labor disputes Contractual disputes For what actions is a party eligible for legal aid? 100% Further to the provision of primary legal aid, more specific legal aid can be offered to assist with drafting complaints and motions, and for the protection of From complainants victims of violence. Legal aid can also be provided during trial. 61

62 – Country Profiles Global Study on Legal Aid Thailand Asia-Pacific Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for public interest litigation and class action cases addressing labour rights, con- sumer rights, health and environmental protection. At the regional level, staff lawyers of public defender institutions sometimes co- ordinate to uniformly challenge common violations of national and internation- al due process rights and human rights. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious Female victims of violence (including victims of sexual and gender-based Women’s access violence) receive legal aid and court support services in all legal proceedings. to legal aid services However, national experts observe that women are often unaware that legal aid services are available at little or no cost, and may not know where to find legal assistance. Experts also note that it is not uncommon for women to perceive le- gal aid providers as lacking gender sensitivity. As a result, women may prefer to resolve issues through the informal justice system or outside the court system, where legal aid has no role. 62

63 – Country Profiles Global Study on Legal Aid Thailand Asia-Pacific The justice system has a Department of Juvenile Observation and Protection at Access to legal aid the Ministry of Justice, as well as specialized courts and judges at both nation- for children al and regional levels, to address cases involving child victims, child witnesses, or suspected/accused children. When representing children, legal aid providers often reach out to parents, psychologists and other childcare professionals for support to assist the child throughout proceedings. <10% In less than 10% of cases when children are suspected or charged with a criminal offence, the case is diverted from the formal justice system without trial (e.g. through mediation, a warning, or an apology) (2013) Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative dispute resolution processes, and there are mechanisms that justice systems allow cases to be referred between the formal and informal justice systems. Informal justice proceedings are mainly used to resolve marital or family issues, as well issues related to informal contracts and labour agreements. According to independent national experts, people prefer to resolve disputes through informal justice proceedings because they take less time, and because of a general perception that they are likely to lead to a negotiated outcome that is acceptable to all parties. Furthermore, informal tribunals are more convenient- ly located, especially for those living in remote areas. For formal mediation/alternative dispute resolution processes, qualifications of arbitrators are not clearly written in law, but there are lists of registered arbitrators. 63

64 – Country Profiles Global Study on Legal Aid Thailand Asia-Pacific Quality safeguards Legal aid providers specialize in representation at particular procedural stages Accountability for of a case, so a new legal aid lawyer will take up a given case at each stage of the the quality of legal proceedings. aid services The maximum caseload for a legal aid lawyer employed by a public defender institution is 40 cases at national level, 20 cases at regional level, and 50 cases at local level. There is no means of assessing the qualification or preparedness of a legal aid provider. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient if s/he has a conflict of interest with the recipient. Each institutional legal aid provider (i.e. Ministry of Justice, Court of Justice of Monitoring Thailand, Lawyers Council of Thailand Under The Royal Patronage, and Legal and data collection Centres at universities) is responsible for monitoring the quality of the legal aid on the quality services they provide. To this end, data is collected through assessments by jus- of legal aid services tice actors (police/prosecutors/judges) and through the review of complaints by legal aid recipients about a legal aid provider’s actions. There are still important data gaps across the system. For instance, data is not re- corded separately for children, and data is not recorded separately with respect to cases filed in court which receive legal aid. 64

65 Viet Nam Asia-Pacific Viet Nam 90.73 million Population Unitary government system 33% 96% 91% 67% Male literacy rate Female literacy rate Urban population Rural population N/A $1,890 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW LOW MID/LOW MID/HIGH MID/HIGH HIGH MID MID/LOW -17,5% 0.549 0.666 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW HIGH LOW MID HIGH VERY HIGH VERY HIGH MID

66 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific Legal Aid at a Glance in Viet Nam N/A Never conducted 2006 Annual expenditure When was the last assessment The most recent reform of the on legal aid per capita in 2013 of legal aid needs conducted legal aid system took place in 2006, when a specific Law on Legal Aid was adopted People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 22 A lot pay a debt, during the past 3 years 59 Some Citizen survey, WJP Rule of Law Index 2015 A Little 18 2 No Trust 47% 3 3 Sample size: 30 0% 100 % Challenges in accessing legal aid Priority areas for support The quality of services provided by legal aid lawyers is uneven Legislative drafting advice  h h Lawyers are paid very little for legal aid work Development of action plans/policies Development of quality criteria for legal aid providers There is a limited number of lawyers in the country h h People may not know where to find legal assistance Establishing paralegal systems Institutional support  h Poor coordination between legal aid organisations  Training and related agencies in the justice system 66

67 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific Legal framework While the right to counsel is constitutionally recognized since 1946, the first Law Right to legal aid on Legal Aid in Viet Nam only came into effect on 1 January 2007. No major reform of the legal aid system has been undertaken since then. The right to legal aid is guaranteed in: 2 Separate law on legal aid State-funded legal aid services are available at national, regional and local levels. Criminal procedure law 2 Implementing regulations for 2 the law on legal aid For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation and provision of legal information. as part of legal aid Legal aid lawyers also provide general assistance in navigating the justice system. Specialized legal aid services are provided by the State for the following disad- vantaged population groups: the poor, people who provided meritorious ser- vice during the revolution, the elderly, abandoned or orphaned children under 16 years old, persons with disabilities, ethnic minorities who face exceptionally difficult socio-economic conditions, and victims of human trafficking. To obtain legal aid services, a person must make an official request for it, and Process for obtaining must prove eligibility, by providing evidence of low income, or by proving mem- legal aid bership of a protected group (such as migrants, children, displaced persons, ref- ugees, etc.) Every year, Provincial Legal Aid Centres conduct public information campaigns Awareness of the right on the right to legal aid and how to access legal aid services, through leaflets to legal aid and various types of broadcast media. When asked to provide a rough estimate of public awareness of legal aid servic- es, independent national experts reckon that the general population is ‘some- what knowledgeable’ about legal aid services. 67

68 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the National Legal Aid Agency (NLLA) of Vietnam, which was established as a department of the Ministry of Justice in 1997, along with six Provincial Legal Aid Centres. The NLLA establishes the legal aid strategy and policy, and sets perfor- mance standards for the delivery of legal aid. In both criminal and civil cases, legal aid services are organised through the Organisation National Legal Aid Agency, the Provincial Legal Aid Centres, the Vietnam Bar of legal aid services Federation, the Viet Nam Lawyers’ Association, university clinical educational programs, civil society organisations, and through schemes (provi- pro bono sion of pro bono services is a condition for membership in the bar association.) The National Legal Aid Agency and Provincial Legal Aid Centres are responsible Mechanism for for assigning legal aid providers to qualifying cases. assigning legal aid providers The quality of legal aid services tends to be better in urban areas. Accessing legal aid in urban vs. rural areas 68

69 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific Service providers Lawyers 1/9,073 N/A and other providers Full-time Licensed practicing /people legal aid lawyers /people lawyers ± 12 University-based Paralegals law clinics Legal aid providers must have a law degree and pass a professional examina- Qualifications required tion (bar examination). They are also required to engage in continuing educa- tion and skills training, and the State partially allots funds to this effect. Legal aid providers need to undertake specialized training to assist disadvantaged popu- lation groups (e.g. persons with disabilities, children, refugees, etc.) Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 Yes, paralegals are recognized by law as ‘collaborators’. While they are not al- lowed to participate in court proceedings, they can provide legal counselling, in both criminal and civil cases. What qualifications are required for paralegals? Paralegals are required to have a university degree (law degree or other) and to have worked “in branches or professions related to fundamental rights and ob- ligations of citizens.” Their qualifications are carefully reviewed by the National Legal Aid Agency. Does any public revenue fund paralegals? Yes, through the Legal Aid Fund which funds legal aid agencies as a whole, in- cluding paralegals. 69

70 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific Can paralegals engage in litigation (with or without the help of lawyers)? No. Are there boards that monitor community paralegals? While there are no specific bodies that monitor paralegals, the Ministry of Justice exerts oversight over legal aid providers, including paralegals. Finances Primary legal aid services are available free of charge at the offices of the National Costs to recipients Legal Aid Agency and at the Provincial Legal Aid Centres, as well as at the bar association offices, which maintain a roster of qualified lawyers available to pro- vide legal advice. The State covers all legal aid costs in criminal and civil cases for legal aid recipi- ents who meet eligibility criteria. Legal aid is not a separate component of the annual justice budget. Legal aid in the annual justice budget In both criminal and civil cases, legal aid providers work in law firms and institu- Payments to legal tions that receive funds from the State on a contractual basis. Providers are also aid providers paid on an hourly basis for actions that the State has identified as a basis of pay- ment. Additionally, in civil and administrative cases, providers receive a fixed fee for the provision of legal advice. 70

71 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. According to the Penal Code, the State is to provide legal aid to persons obliged who meet a financial threshold (in urban areas: US$283/year and in rural areas: US$226/year), to children (under the age of 16) and the elderly, to ethnic minor- ities who face exceptionally difficult socio-economic conditions, to victims of human trafficking, to persons with physical and mental disabilities, persons who provided meritorious service during the revolution, and persons who potential- ly face 10 years of imprisonment or more, or the death penalty. At what stage of a criminal case? 69% Under the law, legal assistance may be requested from the moment a law en- People who believe that the police forcement representative restricts the suspect’s/defendant’s freedom, during always or often respects the basic questioning, or at least from the moment charges are officially filed. Legal aid is rights of suspects WJP Rule of Law Index 2015 also provided during trial, for a first appeal, and for consideration of probation, or social rehabilitation/reintegration after release from prison. It is prohibited by law for the police to interview someone in the absence of a lawyer, unless the person is interviewed as a witness. This can be problematic as the police sometimes determine the person to have a right to legal aid only after the witness has incriminated him/herself. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid providers are less likely than private lawyers to perform actions such as ‘conducting investigation to es- tablish doubt about the suspect’s/defendant’s guilt even if the defendant may be guilty’, or ‘presenting arguments in favour of a suspect’s/defendant’s release 10-25% pre-trial’. Proportion of criminal court cases Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the (2013) strength of the evidence’, and ‘bribery/corruption’ to be amongst the most in- fluential factors in reaching a dismissal of charges or acquittal in criminal cases. 71

72 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases 7% Poor judicial decisions Inadequate resources In 2013, State-funded legal aid was Inadequate criminal defence provided in 7% of criminal cases Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold (in urban areas: US$283/year and in rural areas: US$226/year), to children (under the age of 16) and the elderly, to ethnic minorities who face exceptionally diffi- cult socio-economic conditions, to victims of human trafficking, to persons with Estimated demand for legal aid services in civil cases physical and mental disabilities, persons who provided meritorious service dur- ing the revolution, and persons who potentially face 20 years of imprisonment or more, or the death penalty. For what actions is a party eligible for legal aid? 10% Further to the provision of primary legal aid, more specific legal aid can be of- From respondents fered to assist with drafting and filing complaints and responses, gaining access to State agencies, conducting negotiations between parties, protecting victims of violence, and drafting motions. Legal aid can also be provided throughout mediation, pre-trial hearings, as well as for any appeal or cassation. Public interest litigation / class action cases: At national, regional and local levels, staff lawyers of the National Legal Aid 90% Agency and Provincial Legal Aid Centres sometimes coordinate to uniformly challenge common violations of national and international due process rights From complainants and human rights. 72

73 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees 2% Lack of legal aid Location of Courthouses State-funded legal aid was Duration of cases provided in roughly 2% of all civil/ administrative cases filed in court Bias against marginalized people (2013) Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious 1.5 In 2013, the number of civil/ administrative cases filed in court was roughly 1.5 times the number of criminal cases Female victims of violence (including victims of sexual and gender-based vio- Women’s access lence) receive legal aid only in some legal proceedings; they receive court sup- to legal aid services port services (such as interpretation and translation of documents) in all legal proceedings. However, national experts explain that women often do not understand how le- gal aid services can help them, and are unaware that legal aid services are avail- able at little or no cost, or may not know where to find legal assistance. Experts further report that it is not uncommon for women to see legal aid providers as lacking gender sensitivity and as a result, women may find it difficult to con- fide in a (typically male) legal aid provider and share intimate information relat- ed to a case. National experts also point to the fact that court processes are rath- er time-consuming as another reason why women may prefer not to seek out legal assistance. 73

74 Global Study on Legal Aid – Country Profiles Viet Nam Asia-Pacific The justice system does not have specialized providers or units for represent- Access to legal aid ing child victims, child witnesses or suspected and accused children. National for children experts note that when representing children, legal aid providers rarely reach out to parents or childcare professionals for support to assist the child through- out proceedings. According to independent national experts, there is no noticeable difference re- garding the use of diversion and of alternatives to pre-trial detention/imprison- ment in cases where children are represented by legal aid providers, by private lawyers, or when children are not represented at all. Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative dispute resolution processes, and there are mechanisms that justice systems allow cases to be referred between the formal and informal justice systems. Legal aid service providers can work across different systems. Quality safeguards Legal aid institutions aim to ensure that the same provider represents the ac- Accountability for cused/suspect at all stages of the case. the quality of legal aid services If a legal aid provider does not arrive, the proceeding is postponed. If a legal aid provider is unprepared or unqualified, a replacement legal aid provider is asked to represent the party instead of the assigned provider. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient if s/he has too many cases, or lacks expertise in the law or skills required by the specific case, or if there is incompat- ibility or a conflict of interest with the legal aid recipient. No data is collected on the quality of legal aid services. There are significant data Monitoring gaps across the system. For instance, no data is available on case resolution pri- and data collection or to a case’s transfer to court. on the quality of legal aid services 74

75 Sub-Saharan Africa 76 Benin Burkina Faso 85 96 Cabo Verde Chad 105 Democratic Republic of Congo 114 Ghana 124 Kenya 135 Mauritania 145 Mauritius 153 South Africa 163

76 Benin Sub-Saharan Africa Benin 10.60 million Population Unitary government system 18% 41% 44% 56% Rural population Male literacy rate Female literacy rate Urban population 0.823 $890 Gender Development Index GNI per capita 0.95 0.925 0.9 $1,045 $4,126 $12,736 0.975 MID/HIGH MID/LOW MID/LOW MID/HIGH MID HIGH HIGH LOW LOW -37.4 0.300 0.480 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.8 0.55 0.7 0.7 0.8 0.55 MID MID HIGH VERY HIGH HIGH VERY HIGH LOW LOW

77 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa Legal Aid at a Glance in Benin N/A 2010 Never conducted When was the last assessment Annual expenditure The most recent reform on legal aid per capita in 2013 of legal aid needs conducted of the legal aid system was carried out in 2010 , when the bar association established a Legal Aid Fund to enhance access to justice across the country Priority areas for support Challenges in accessing legal aid h There is no organised legal aid system Legislative drafting advice h People may not know where to find legal assistance, Development of action plans/policies  and/or may not be aware that that legal aid services Development of quality criteria for legal aid providers  Establishing paralegal systems are available at little or no cost Institutional support  Language barriers exist between legal aid providers h  Training and those who need legal aid The bar association is opposed to allowing paralegals h to fill the gap of available lawyers Lawyers are paid very little for legal aid work h 77

78 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa Legal framework The right to legal aid, specified in Ordinance 73-53, was first recognized into Right to legal aid law on 2 August 1973, but up until now, an application decree for this law has yet to be issued. The right to legal aid is guaranteed in: Constitution 2 In an effort to remedy the situation, the bar association established in February 2 Separate law on legal aid 2010 a Legal Aid Fund (“Fonds d’assistance juridique et judiciaire du Barreau du Law on judicial procedure 2 Benin” or FAJJUB) to enhance access to justice across the country, notably by Law on the prosecution 2 2 Civil procedure code making lawyers more easily available to people. 2 Criminal procedure law Legal aid services include legal advice and legal assistance, including assistance Services included to a litigant when interrogated by a prosecutor or the police. as part of legal aid Some civil society organisations provide specialized legal aid services for disad- vantaged population groups, such as persons with disabilities, children, the el- derly, refugees. indigenous populations, etc. In theory, legal aid should be provided automatically if the case or legal aid re- Process for obtaining cipient qualifies for legal aid services. No proof of eligibility should be necessary legal aid in cases where the State is obliged to provide legal aid under the law. In practice however, this automatic process for obtaining legal aid is applied by few actors only, namely by the ‘legal aid caravans’ led by the bar association, by centres for victims of gender-based violence, and by a number of civil society organisations. The State has not conducted any public information campaign to raise aware- Awareness of the right ness about the right to legal aid and how to access legal aid services, but some to legal aid awareness-raising activities have been undertaken by civil society organisations, by centers for social promotion, and by centers for victims of gender-based violence. Thanks to these efforts, the general population is ‘somewhat knowledgeable’ about the right to legal aid services and how to access them, and their level of awareness is increasing, according to independent national experts. 78

79 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa Delivery model The legal aid board, together with the bar association, are responsible for the man- Legal aid authority agement of legal aid. The legal aid board is appointed by the Executive and by the courts, with representatives of the judiciary (other than the Supreme Court), retired judges, and representatives of social or welfare agencies. For criminal cases, legal aid services are provided through the public defend- Organisation er, the bar association, schemes, civil society and panel appointments. pro bono of legal aid services Legal aid providers are assigned criminal cases through the bar association, Mechanism for which coordinates appointments and maintains a roster of qualified lawyers assigning legal aid available to provide legal advice. providers Legal aid services are available in rural areas, but only for criminal cases. The qual- Accessing legal aid in ity of legal services tends to be higher in urban areas, where legal aid providers urban vs. rural areas have more independence to challenge the actions of other justice actors. 79

80 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa Service providers Lawyers 1/67,079 N/A and other providers Licensed practicing Full-time legal aid lawyers /people /people lawyers None Paralegals University-based In both criminal and civil cases, paralegals law clinics are allowed to provide legal advice and general assistance in navigating the justice system. In criminal cases, paralegals can also provide legal assistance to a litigant before a prosecutor or a court. State-funded legal aid providers must have a law degree, be members in the na- Qualifications required tional bar and show proof of passing a professional examination. In criminal cas- es, they must also have completed an internship with a practicing lawyer, and have registered in a State-authorised roster of legal aid providers. In order to be accredited, paralegals do not require formal educational training. In theory, they must complete a professional training course accredited by the State as well as an apprenticeship with lawyers so as to gain experience work- ing with the courts, but in practice, this is not always the case. Legal aid providers are required to undergo periodic skills training or testing. This is a requirement that both the bar association and the State impose on its members, but the State does not allot funds to this end. 80

81 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa Finances Legal aid services are free of charge to those meeting eligibility criteria. Primary Costs to recipients legal aid services are provided free of charge at legal advice centers in city ad- ministrative offices. Civil society organisations also provide legal assistance to people who come to their office. The budget for legal aid is determined by the Ministry of Justice and the judi- Legal aid in the annual ciary. Separate funding for specialized legal aid services to disadvantaged pop- justice budget ulations is provided by the State, private companies and international donors. Additional services (such as independent forensic experts, psychological or so- cial work support, etc.) are covered by the State. Legal aid providers receive a fixed fee for each case, and the legal aid board is re- Payments to legal sponsible for disbursing payments to legal aid providers. Legal aid providers can aid providers also be hired by the legal aid board on a part-time contractual basis, to provide services as needed. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. The State is obliged to provide legal aid to anyone charged with a criminal of- fence, with a particular focus on those who meet a financial threshold, who can demonstrate family hardship, or are a member of a protected group (such as mi- grants, children, displaced persons or refugees). In some circumstances, no proof is needed, as entitlement to legal aid depends on the gravity or complexity of the matter requiring assistance. 81

82 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa At what stage of a criminal case? Under the law, legal aid should be made available from the moment a law en- forcement representative restricts the suspect’s/defendant’s freedom, and dur- ing questioning before formal charges are filed. Legal aid should also be provid- ed during trial and for any appeal or cassation. In practice, however, the right to legal aid is not consistently enforced, largely because enforcement provisions are still lacking. For instance, rarely is a legal aid provider present during ques- tioning of a potential suspect/defendant, before formal charges are filed. After a legal aid provider is appointed to a case, s/he almost always remains on that case until it is resolved, unless s/he becomes unavailable or is unqualified to 15% represent the suspect/defendant at trial. Criminal court cases that had pre-trial detention imposed in 2013 To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely than private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/de- fendant in private before any contact with a state justice official’. Independent national experts identify ‘the judge’s objective analysis of evidence and testimony’, ‘a well-prepared and/or highly skilled lawyer’ and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. Who is eligible? Legal aid in civil cases Under the law, a person is eligible for legal aid in civil cases if s/he meets a finan- Estimated demand for legal aid cial threshold, or is a child. Eligibility depends on the case’s gravity and complex- services in civil cases ity, and on whether the interests of justice require it. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 60% From respondents Labor disputes Property issues Administrative matters Marital disputes Dispute resolution and child custody issues proceedings or mediation 40% 82 From complainants

83 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa For what actions is a party eligible for legal aid? Under the law, legal aid should be provided when filing complaints and re- sponses; when providing protective services for victims of violence; when con- ducting depositions or other official queries; during pre-trial hearings and dur- ing trial; and for any appeal or cassation, including any appeal to international tribunals. Public interest litigation / class action cases: There is demand and interest for public interest litigation and class action cases to address cases of discrimination, labour rights, and health. According to national experts, the fact that legal aid is not provided for family Women’s access matters is a significant obstacle facing women in accessing legal aid. Experts also to legal aid services report that women may not always be aware that legal aid services are available at little or no cost, or may not know where to find it. For all of these reasons, wom- en may prefer to resolve issues through the informal justice system or outside the court system, where legal aid has no role. Under the law, female victims of violence (including victims of sexual and gen- der-based violence) are entitled to receive legal aid services. In practice however, they do not receive legal aid services in all legal proceedings. The justice system has specialized providers/units for representing child victims, Access to legal aid child witnesses or suspected and accused children, including specialized courts for children and judges, as well as specialized police officers or units. When representing children, legal aid providers routinely reach out to parents, social workers, psychologists and child protection service practitioners for sup- port to assist the child throughout proceedings. In criminal cases involving suspected or accused children, diversion away from judicial proceedings is usually used. Informal justice mechanisms do not allow for a lawyer or paralegal to provide Legal aid and informal assistance in the mediation/adjudication process. There are no mechanism that justice systems allows referrals between the formal and informal justice systems. When providing assistance in customary or religious/adjudication processes, le- gal aid providers do not require formal qualifications but need to be reputable members of the community. 83

84 Global Study on Legal Aid – Country Profiles Benin Sub-Saharan Africa Quality safeguards By law, if a person has a right to legal aid, but no legal aid provider is available, the Accountability for proceedings must cease until a legal aid provider arrives. In practice however, the quality of legal the police, prosecutors or judges can start questioning a suspect or defendant aid services when it takes too long for the legal aid provider to arrive. Additionally, the po- lice sometimes questions a person first as a witness, and determines the person to have a right to legal aid only after the witness has incriminated her/himself. If a legal aid provider is unprepared or unqualified, the proceeding is postponed, or a replacement legal aid provider is asked to represent the party instead of the assigned provider. However, there is no means of assessing whether the legal aid provider is unprepared or unqualified. A legal aid provider can refuse to take a case assigned to him/her due to lacking expertise in the law or skills required by a specific case, or due to incompatibili- ty or conflict of interest with the legal aid recipient. While no institution formally assumes the responsibility of monitoring the Monitoring quality of legal aid services, civil society organisations play a significant role in and data collection this regard by conducting interviews with legal aid recipients following case on the quality resolution. of legal aid services There is an acute shortage of data in the justice system. For instance, no data is available on the number of criminal cases filed in court where State-funded le- gal was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 84

85 Burkina Faso Sub-Saharan Africa Burkina Faso 17.59 million Population Unitary government system 37% 22% 24% 76% Rural population Female literacy rate Male literacy rate Urban population 0.881 $700 Gender Development Index GNI per capita 0.95 0.9 $1,045 $4,126 $12,736 0.975 0.925 HIGH MID/LOW MID/LOW MID/HIGH MID HIGH MID/HIGH LOW LOW -35% 0.261 0.402 HDI Inequality-adjusted HDI Loss in HDI due to inequality 0.8 0.55 0.55 0.8 0.7 0.7 HIGH LOW LOW MID HIGH VERY HIGH MID VERY HIGH

86 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa Legal Aid at a Glance in Burkina Faso N/A Never conducted 2014 Annual expenditure When was the last assessment Most recent reform of the legal of legal aid needs conducted on legal aid per capita in 2013 aid system carried out in 2014 People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 6 A lot pay a debt, during the past 3 years 21 Some Citizen survey, WJP Rule of Law Index 2015 38 A Little No Trust 35 11% 3 3 Sample size: 121 100 % 0% Priority areas for support Challenges in accessing legal aid  Limited number of lawyers, especially outside urban areas, g Legislative drafting advice Development of action plans/policies and lawyers are paid very little for legal aid work  People’s perception that legal aid lawyers are more loyal g  Development of quality criteria for legal aid providers  Establishing paralegal systems to State agencies than to legal aid recipients Institutional support g People sometimes prefer to resolve issues through Training the informal justice system or outside the court system,  where legal aid has no role g There is little support among the population for spending funds to defend accused criminals The legal aid fund established by the State is not yet fully g operational and lacks funding; people also lack awareness about the existence of this fund 86

87 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa Legal framework The right to legal aid was first enacted into law in 2001, and the legal aid sys- Right to legal aid tem was most recently reformed in 2009, with strong involvement from the Ministry of Justice, the Parliament and international donors. It is only in 2014 The right to legal aid is guaranteed in: that legal aid provisions became effective. Separate law on legal aid 2 2 Law on judicial procedure State-funded legal aid is available at national level only. 2 Law on the judiciary Implementing regulations 2 for the law on legal aid Services included as part of “legal aid” include (for both criminal and civil/admin- Services included istrative cases): legal advice, legal representation before a prosecutor, court or tri- as part of legal aid bunal, and legal assistance. The State does not provide specialized legal aid services for disadvantaged pop- ulation groups, such as persons with disabilities, children, the elderly, refugees. indigenous populations, etc. Legal aid is provided upon request from the person who wants legal aid, from Process for obtaining the prosecutor, and from the institution that oversees the appointment of legal legal aid aid providers based on notification from a State justice actor or applicant for le- gal aid. To receive legal aid, a person must prove eligibility by showing evidence of low income, membership of a protected group (such as migrants, nonfluency in the national language, ethnic or religious minority, etc.), or a determination by the agency responsible for ensuring appointment that the interests of justice re- quire provision of legal aid in the given specific case. No proof is necessary in cases where the State is obliged to provide legal aid under the law. 87

88 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services has been conducted at least once over the to legal aid past year. That campaign explained the importance of the right to legal aid, and provided people with practical information such as a telephone number to call for more information, as well as the addresses of office(s) where legal assistance can be sought. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about the right to legal aid services and how to access them. A large proportion is still unaware that legal aid services are available at little or no cost, and they have a limited understanding of how legal aid servic- es can help them. Delivery model Responsibility for the management of legal aid is shared among the Ministry of Legal aid authority Justice and a Legal Aid Board. The Legal Aid Board is appointed by the Executive, with members of the bar, repre- sentatives of the judiciary (other than the Supreme Court), officials specializing on legal aid, members of the national human rights institution, and legal aid providers. It is required by law that the President of the Board be a judge. Legal aid services are provided through public defender institutions, through Organisation panel appointments and through the bar association. of legal aid services The main incentives for lawyers to provide some services pro bono include a range of benefits (e.g. car), discounts and tax deductions made available to them. The provision of pro bono services is also appreciated by less experi- enced lawyers as a means to practice and acquire experience. Legal aid providers are assigned in two ways: first, the legal aid board maintains Mechanism for a duty roster, and State agencies can contact the board when a legal aid pro- assigning legal aid vider is needed. Second, there are legal aid providers on duty in courts and po- providers lice precincts. 88

89 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa Legal aid services are not available in rural areas, largely because the commis- Accessing legal aid in sion responsible for assessing requests for legal aid is located in the capital, and urban vs. rural areas does not have local representation in the regions. A number of civil society or- ganisations such as the Female Lawyers Association provide legal aid in specific regions of the country, but coverage remains very limited. Service providers Lawyers N/A 1/125,635 and other providers Licensed practicing Full-time /people lawyers legal aid lawyers /people None Paralegals University-based Are allowed to provide legal advice, legal law clinics representation before a prosecutor, court or tribunal, and general assistance in navigating the justice system. Both State-funded legal aid providers and paralegals must have a law degree Qualifications required and show proof of passing a professional examination. In addition, State-funded legal aid providers must have have completed an apprenticeship or internship with a practicing lawyer, and paralegals must must have a contractual relation- ship with the agency that oversees the administration of legal aid. The law does not require legal aid providers to engage in continuing education and/or skills training, but the bar association encourages providers to do so. The State however does not allot funds to this end. 89

90 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa Finances Legal aid services for both criminal and civil cases are free of charge to those Costs to recipients meeting eligibility criteria. Primary legal aid services are provided free of charge at the office of the public defender, or other State-funded institutional legal aid provider. Civil society or- ganisations also provide legal advice to people who come to their office. Legal aid is not a separate component of the annual justice system budget. The Legal aid in the annual budget for legal aid is determined by the Ministries of Finance and Justice, to- justice budget gether with international organisations supporting legal aid. Separate funding for specialized legal aid services to disadvantaged popula- tions is provided by international donors, while additional services (such as in- dependent investigation, experts, psychological or social work support, etc.) are covered by the State. Some legal aid providers receive a fixed fee for each action they take on a case Payments to legal (for both criminal and civil cases). Others work full-time in institutions funded by aid providers the State — such as in the public defenders’ office. 90

91 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa Provision of legal aid Who is eligible? Legal aid in criminal cases available Under the law, legal aid is to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges and victims of crime. The State is obliged to provide legal aid to persons who meet a finance thresh- old, and to persons who potentially face death penalty. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, during an identification procedure, or from the moment charges are officially filed. Legal aid should also be provided during trial, and for any appeal or cassation. In re- ality, however, the police does sometimes initiate interviews in the absence of 25-50% a lawyer. Proportion of criminal court cases (2013) In criminal cases, it is not uncommon to see the accused/suspect represented by different legal aid providers at various stages in the proceedings. To what extent are legal aid services in criminal cases seen as effective? Comparing the services of lawyers working on legal aid cases to services of law- yers working on privately paid cases, independent national experts estimate that legal aid providers are more likely to advocate for alternative resolution of the case when the defendant is under 18 years of age. Beyond this, experts re- port that there is no significant difference in the performance and quality of ser- vices provided by legal aid providers and private lawyers. National experts identify ‘the judge’s objective analysis of evidence and testimo- ny’, ‘a well-prepared/highly skilled lawyer’, ‘availability of an independent expert 65% testimony’ and ‘the strength of the evidence’ to be amongst the most influential People who believe that the police factors in reaching a dismissal of charges or acquittal in criminal cases. always or often respects the basic rights of suspects WJP Rule of Law Index 2015 91

92 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious Who is eligible? Legal aid in civil cases Under the law, a person is eligible for legal aid in civil cases if s/he meets a finan- cial threshold (minimum daily wage or less). 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Estimated demand for legal aid services in civil cases Property issues Labor disputes Administrative matters Tort claims Marital disputes and child custody issues 50% For what actions is a party eligible for legal aid? From respondents Under the law, legal aid should be provided during trial, for the drafting of mo- tions, and for any appeal or cassation. Public interest litigation / class action cases: State-funded legal aid is provided for public interest litigation and class action cases (to address cases of discrimination, labour rights, consumer rights, envi- 50% ronmental protection, etc.). To date, however, there has not been much demand From complainants and/or interest for such initiatives. 92

93 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious According to national experts, women lack awareness about the availability of Women’s access legal aid services at little or no cost, and they may not know where to find legal to legal aid services assistance. Experts also report that women may not always trust the judicial sys- tem, and may find court processes to be too time-consuming. It may also be dif- ficult for women to confide in a (male) legal aid provider and share intimate in- formation related to a case. For all of these reasons, women may prefer to resolve issues through the informal justice system or outside the court system, where le- gal aid has no role. Female victims of violence (including victims of sexual and gender-based vio- lence) do not receive legal aid services in all legal proceedings. 93

94 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa The justice system has specialized providers/units for representing child victims, Access to legal aid child witnesses or suspected and accused children, including specialized courts for children and judges, as well as specialized prosecutors, but those are available only in the two largest cities of the country (Ouagadougou and Bobo-Dioulasso). When representing children, legal aid providers routinely reach out to parents, social workers, psychologists and child protection service practitioners, to assist the child throughout proceedings. National experts report that people may prefer to use informal justice pro- Legal aid and informal ceedings for disputes related to family, land and property, as well as inheritance. justice systems Amongst reasons identified by experts for people to seek assistance from infor- mal justice systems, the fact that informal tribunals are more conveniently locat- ed, especially for those living in remote areas, and that they take less time, are underscored. Experts also note that because judges or decision-makers usually know the parties well, they are perceived by people to be better judges of what is a just outcome. There are mechanisms that allow referrals between the formal and informal jus- tice systems, for formal mediation and alternative dispute resolution processes. When providing assistance to formal mediation and alternative dispute resolu- tion processes, legal aid providers must have a law degree (not required when providing assistance to customary or religious mediation and adjudication pro- cesses), and be a reputable member of the community. 94

95 Global Study on Legal Aid – Country Profiles Burkina Faso Sub-Saharan Africa Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a legal aid provider arrives. the quality of legal aid services There is no formal means of assessing whether a legal aid provider is unpre- pared or unqualified, so it is difficult for a person to seek remedy if the services s/he receives from a provider are not satisfactory. A legal aid provider can refuse to take a case assigned to him/her if there is in- compatibility or a conflict of interest with the legal aid recipient. The Ministry of Justice is responsible monitoring the quality of legal aid servic- Monitoring es. In practice, however, no data is collected on the quality of legal aid services. and data collection on the quality There is an acute shortage of data in the justice system. For instance, no data of legal aid services is available on the number of criminal or civil cases filed in court where State- funded legal was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 95

96 Cabo Verde Sub-Saharan Africa Cabo Verde 513,900 Population Unitary government system 90% 80% 65% 35% Rural population Female literacy rate Male literacy rate Urban population N/A $3,450 Gender Development Index GNI per capita 0.925 $1,045 $4,126 $12,736 0.975 0.95 0.9 LOW MID/HIGH HIGH LOW MID/LOW MID/HIGH MID HIGH MID/LOW -19.7% 0.646 0.519 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.7 0.8 0.55 0.7 0.8 0.55 LOW MID HIGH VERY HIGH LOW HIGH VERY HIGH MID

97 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa Legal Aid at a Glance in Cabo Verde N/A Never conducted 1992 When was the last assessment Annual expenditure The most recent reform of legal aid needs conducted on legal aid per capitain 2013 of the legal aid system was carried out in 2010 , when the bar association established a Legal Aid Fund to enhance access to justice across the country Challenges in accessing legal aid Priority areas for support Legal aid is not always geographically accessible h Legislative drafting advice Development of action plans/policies h  People often do not know that legal aid services Development of quality criteria for legal aid providers are available at little or no cost  Low pay of lawyers for legal aid work Establishing paralegal systems h  Support for institutional reforms to accelerate the treatment of cases (legal proceedings can sometimes last for more than ten years) Training Capacity-building for Justice Inspectors  97

98 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa Legal framework The right to legal aid was first recognized in 1975. Right to legal aid The most recent reform of the legal aid system took place in 1992, when the The right to legal aid is guaranteed in: right of defence and counsel assistance free of charge was introduced into the 2 The Constitution Constitution (Articles 22(1,3,4), 33(3)). 2 Implementing regulations on legal aid State-funded legal aid is available at national, regional and local levels. For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, legal assistance (before national tribunals), and provision of as part of legal aid legal information. Legal aid lawyers also provide general assistance in navigat- ing the justice system. There are no specialized legal aid services with a focus on specific disadvan- taged population groups, except for children who are always represented by the Attorney-General. Legal aid is provided upon request from the person who wants legal aid, or Process for obtaining upon request from the legal aid provider. The court presiding over a case must legal aid also assess eligibility during the first appearance of the parties. In both criminal and civil cases, to prove eligibility to receive legal aid, a person must provide evidence of low income, if employed. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in the past to legal aid year, and provided specific contact details of relevant offices to go to for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 98

99 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Ministry of Justice. Legal aid services, in both criminal and civil cases, are provided through the bar Organisation association. of legal aid services As per Article 213 of the Constitution, “Casas do Direito” (Houses of Law) have also been established to provide judicial information, to help mediate conflicts, and to orient parties should they decide to submit a case to court, and/or to re- quest legal aid from the Bar Association. Legal aid services are also provided through pro bono schemes in both crimi- nal and civil cases (the provision of services is a condition for mem- pro bono bership in the bar). To request the services of a legal aid provider, State agencies contact the bar as- Mechanism for sociation that maintains a duty roster. assigning legal aid providers Legal aid services are available in rural areas, through the “Casas do Direito” Accessing legal aid in (Houses of Law) which are directly connected with the Bar Association. urban vs. rural areas Accessibility to legal aid services is nonetheless limited or inexistent on certain islands, largely due to the lack of financial incentives for legal aid lawyers to op- erate on the more remote islands. 99

100 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa Service providers Lawyers 1/2,635 N/A and other providers Licensed practicing Full-time /people lawyers /people legal aid lawyers 1/85,650 None University-based Paralegals /people law clinics In both criminal and civil cases, paralegals are allowed to provide general assistance in navigating the justice system. Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must also be members of the national bar and have completed an apprenticeship or internship with a prac- ticing lawyer. To become a staff member of the institutional legal aid provider, lawyers are not required to engage in continuing education and/or skills training. Paralegals are not required to go through any training to be accredited to pro- vide legal services. 100

101 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa Finances Primary legal aid services are available free of charge (to those meeting eligibil- Costs to recipients ity criteria) at the offices of the bar association. Legal aid is a separate component of the annual justice budget. The nation- Legal aid in the annual al budget for legal aid is determined by the Parliament and the Ministries of justice budget Finance and Justice. The bar association participates in decisions about the bud- get for legal aid. The government provides separate funding to cover the cost of specialized le- gal aid services. However, additional services, such as independent investiga- tions, experts or psychological/social support, are not covered by the State. The Ministry of Justice compensates the Bar Association for the legal aid Payments to legal provided. aid providers Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, and victims of crime. The State is obliged to provide legal aid when the law notes that the interests of justice require it. 101

102 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa At what stage of a criminal case? Under the law, legal aid should be provided from the moment when a law en- forcement representative restricts the suspects/defendant’s freedom. Generally, it is prohibited by law for the police to interview someone in the ab- sence of a lawyer. Police and prosecutors wait a limited amount of time for a le- gal aid provider to arrive, but if it takes too long, the questioning begins even if the legal aid provider has not arrived. Furthermore, police sometimes question a person first as a witness, and determine the person to have a right to legal aid only after the witness has incriminated him/herself. 50-75% To what extent are legal aid services in criminal cases seen as effective? Proportion of criminal court cases Comparing the services of legal aid providers to services of private lawyers, in- (2013) dependent national experts estimate that legal aid providers are less likely than private lawyers to perform actions such as ‘giving advice to the suspect/defen- dant in private before any contact with a state justice official’, or ‘pointing to weaknesses in the evidence presented against the suspect/defendant, even if the defendant may be guilty’. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’ and 1.2 ‘the judge’s objective analysis of evidence and testimony’ to be amongst the The number of criminal cases filed in most influential factors in reaching a dismissal of charges or acquittal in crimi- court in 2013 was 1.2 the number of civil cases filed in court nal cases. Who is eligible? Legal aid in civil cases Legal aid in civil cases is available when the law notes that the interests of jus- tice require it. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Child custody issues Labor disputes Property issues and marital disputes Contractual disputes Claims for State services or and tort claims disputes with State agencies 102

103 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa Estimated demand for legal aid For what actions is a party eligible for legal aid? services in civil cases Further to the provision of primary legal aid, more specific legal aid can be of- fered to protect victims of violence. Legal aid can also be provided throughout dispute resolution proceedings and for any appeal or cassation. Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for 40% State-funded legal aid for public interest litigation and class action cases ad- dressing labour rights, consumer rights and environmental protection. From respondents 60% From complainants Female victims of violence (including victims of sexual and gender based vio- Women’s access lence) receive legal aid advice and court support services (such as interpretation to legal aid services and translation of documents) in all legal proceedings. The presence of “Casas do Direito” (Houses of Law) in almost every municipality plays a critical role in this re- spect. Women have become increasingly aware that legal aid services are avail- able to them at little or no cost in cases of gender-based or domestic violence. The recently adopted Statute of the Child and Adolescent (law no. 50/VIII/2013) Access to legal aid regulates the provision of legal aid services for child victims, child witnesses or for children suspected and accused children. A recent revision of the penal code further es- tablishes that correctional education at specialized educational centers may be provided to a child who is under 16 years old (beyond 16 years of age, a convict- ed adolescent goes to prison). When representing children, legal aid providers often reach out to parents, so- cial workers and other childcare professionals for support to assist the child throughout proceedings. In criminal cases, national experts report that there is no noticeable difference in how frequently are used diversion, alternatives to pre-trial detention, or alter- natives to imprisonment when children are represented by legal aid providers (irrespective of whether they are specialized in children’s rights or not) and by private lawyers. 103

104 Global Study on Legal Aid – Country Profiles Cabo Verde Sub-Saharan Africa Formal mediation and alternative dispute resolution mechanisms are some- Legal aid and informal times used to resolve land and property disputes. “Casas do Direito” (Houses of justice systems Law) are formally mandated to promote and facilitate mediation between par- ties, with a view to helping parties to solve a dispute before it reaches the court. According to the law, when an agreement is reached through mediation, it has to be signed by a judge. Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a legal aid provider arrives. the quality of legal aid services The quality of legal aid is not monitored. Monitoring and data collection on the quality of legal aid services 104

105 Chad Sub-Saharan Africa Chad 13.59 million Population Unitary government system 22% 47% 29% 78% Male literacy rate Female literacy rate Rural population Urban population $980 0.881 GNI per capita Gender Development Index 0.925 0.9 $1,045 $4,126 $12,736 0.95 0.975 MID/LOW HIGH MID/LOW MID/HIGH HIGH MID MID/HIGH LOW LOW -39% 0.392 0.236 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.8 0.7 0.8 0.55 0.55 0.7 VERY HIGH HIGH MID LOW VERY HIGH HIGH MID LOW

106 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa Legal Aid at a Glance in Chad N/A Never conducted 1967 Right to legal aid first Annual expenditure When was the last assessment recognized in 1967 of legal aid needs conducted , but decrees on legal aid per capita in 2013 for the implementation of this right were never adopted Priority areas for support Challenges in accessing legal aid Legislative drafting advice There is no organised legal aid system in the country  h h There is a limited number of lawyers in the country, Development of action plans/policies  especially outside urban areas  Development of quality criteria for legal aid providers Lawyers are paid very little for legal aid work Establishing paralegal systems h  h People may not be aware that legal aid services are Institutional support to establish a formal mechanism for the  available at little or not cost, and may not know where provision of legal aid Training  to find legal assistance People often prefer to resolve issues through the informal h justice system or outside the court system, where legal aid has no role 106

107 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa Legal framework The right to legal aid was first enacted into law in 1967 (Ordinance N°13-PR- Right to legal aid MJ of the criminal code), but specific provisions on legal aid have yet to be im- plemented and as such the legal aid system is not yet operational. A compre- The right to legal aid is guaranteed in: hensive bill on legal aid provision is under review by the Government since Criminal procedure law 2 December 2012, and if adopted by parliament, would pave the way for the op- 2 Civil procedure code erationalization of the legal aid system. The current legislation (from 1967) states that legal aid should be provided Services included mainly in the form of legal advice and legal representation. as part of legal aid The current legislation does not have specific provisions on State-funded spe- cialized legal aid services for specific population groups, such as persons with disabilities, migrants or ethnic/religious minorities. The legal aid system is not yet operational. However, the law of 1967 states that Process for obtaining legal aid should be provided upon request from the person who wants legal aid, legal aid and that the court presiding over a case must also inquire and assess eligibility during the first appearance of the parties. According to the law of 1967, to receive legal aid, a person must prove eligibili- ty by showing a proof of status as a recipient of welfare or state subsidies for in- digent and vulnerable members of the population. With the introduction of the new bill for the operationalization of the legal Awareness of the right aid system in 2012, a new Directorate was created in the Ministry of Justice to to legal aid help raise awareness about the right to legal aid and the importance of State- provided legal aid services. Standard public information campaigns through broadcast media are illsuited to a largely illiterate population, but civil society organisations are well-placed to conduct awareness-raising activities at the grassroots, which they have done quite successfully over the past few years. Independent national experts esti- mate that the general population is ‘somewhat knowledgeable’ about the right to legal ai. 107

108 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa Delivery model There is no central administration for the management of legal aid. Legal aid authority Given that the State has not yet operationalized the legal aid system, legal aid Organisation services are mainly provided through non-governmental organisations. of legal aid services Pro bono schemes for young law school graduates to provide legal aid services across the country are also in place, supported by international organisations and NGOs. Such a mechanism does not exist. Mechanism for assigning legal aid providers Some legal aid services are provided in rural areas by NGOs or young lawyers, Accessing legal aid in mainly in the East of the country, but generally it is very difficult for people living urban vs. rural areas outside urban centres to access legal aid services. 108

109 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa Service providers Lawyers 1/78,103 N/A and other providers Full-time Licensed practicing lawyers legal aid lawyers /people /people None Paralegals University-based Are allowed to provide legal advice law clinics in both civil and criminal cases. State-funded legal aid providers must have a law degree and be a member of Qualifications required the national bar. Legal aid providers are not required by law to engage in con- tinuing education or skills training. Finances Legal aid services are provided free of charge to those meeting eligibility crite- Costs to recipients ria, but there are set fees for certain actions. Primary legal aid services are provid- ed free of charge by civil society organisations, which provide legal aid advice to people who come to their office. Given that the new law on legal aid has yet to be adopted, and that the national Legal aid in the annual legal aid system is not yet operational, costs of legal aid services have so far been justice budget covered almost entirely by international organisations and NGOs. 109

110 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa When payments are made to legal aid providers (a large majority of them pro- Payments to legal vide services as volunteers), those are made by NGOs which implement legal aid providers aid programmes funded by international organisations. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the new law currently under review by the government, legal aid would be available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on criminal charges and victims of crime. The State would be obliged to provide legal aid to persons who meet a financial threshold. It would also be provided according to the case’s gravity, complexity or case type, as identified by the law. At what stage of a criminal case? Under the new law, legal aid would be provided from the moment a law en- forcement representative restricts the suspect’s/defendant’s freedom, all the 10-25% way through trial. The law foresees that the police will be prohibited from inter- Proportion of criminal court cases viewing someone in the absence of a lawyer. (2013) 110

111 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa Who is eligible? Legal aid in civil cases Under the new law currently under review by the government, a person would be eligible for legal aid in civil cases if s/he meets a financial threshold, or when the law notes that the interests of justice require it. Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 20% Property issues Child custody issues Marital issues From respondents Tort claims Labor disputes Public interest litigation / class action cases: 80% Legal aid is currently not provided for public interest litigation and class action cases. There would however be public demand and interest for initiatives to From complainants address cases of discrimination, labour rights, environmental protection, health and consumer rights. According to national experts, women lack awareness about the availability of le- Women’s access gal aid services at little or no cost and about where to find legal assistance. Experts to legal aid services also note a perception that court processes as biased against women, and that they are too time-consuming. For all of these reasons, women may prefer to re- solve issues through the informal justice system or outside the court system. Female victims of violence (including victims of sexual and gender-based vio- lence) can receive legal aid services from non-state legal aid providers such as the association of female lawyers of Chad. 111

112 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa Children can receive legal aid services from non-state legal aid providers such Access to legal aid as the association of female lawyers of Chad. The formal justice system also has for children a number of specialized courts and judges for children who are suspected or charged with a criminal offence. When representing children, legal aid providers often reach out to parents and child protection service practitioners for support to assist the child throughout proceedings. <10% Less than 10% of cases where children are suspected or charged with a criminal offence is diverted from the formal justice system without trial (through mediation, apology, etc.) (2013) Informal justice proceedings are most commonly used for marital or family dis- Legal aid and informal putes, child custody issues, land and property disputes inheritance disputes, and justice systems minor criminal cases. People prefer to resolve disputes through informal justice proceedings because informal tribunals are more conveniently located, especially for those living in remote areas. They take less time, people understand how they work, and feel that they most often lead to a negotiated outcome that is acceptable to all parties. Informal justice mechanisms rarely allow for a lawyer to provide assistance in the mediation or adjudication process. Under certain circumstances, legal aid providers can work across the formal and informal systems, but it is uncommon for cases to be referred between the two systems. The new law currently under review by the government does not propose to establish a mechanism for referrals of cases between the formal and informal justice system. 112

113 Global Study on Legal Aid – Country Profiles Chad Sub-Saharan Africa Quality safeguards Under the current circumstances, even though the law of 1967 recognizes a Accountability for right to legal aid to every litigant, it is often the case that no legal aid provider is the quality of legal available, and the proceedings must continue, for lack of resources. aid services Furthermore, even when a legal aid provider is made available to a litigant, there is no formal means of assessing whether a s/he is unprepared or unqualified. This makes it difficult for a person to seek remedy if the services s/he receives from a provider are not satisfactory. No specific body is responsible monitoring the quality of legal aid services, and Monitoring no data is being collected to this effect. There is an acute shortage of data in the and data collection justice system. For instance, no data is available on the number of criminal or civ- on the quality il cases filed in court where State-funded legal was provided. Data about chil- of legal aid services dren is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 113

114 Democratic Republic of Congo Sub-Saharan Africa Democratic Republic of Congo 74.88 million Population Unitary government system 42% 88% 63% 58% Male literacy rate Female literacy rate Rural population Urban population $380 0.833 GNI per capita Gender Development Index 0.925 0.9 $1,045 $4,126 $12,736 0.95 0.975 LOW HIGH MID/LOW MID/HIGH HIGH MID MID/HIGH LOW MID/LOW -36.2% 0.433 0.276 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.8 0.7 0.8 0.55 0.55 0.7 VERY HIGH HIGH MID LOW VERY HIGH HIGH MID LOW

115 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa Legal Aid at a Glance in the Democratic Republic of Congo Currently conducted 1979 N/A Right to legal aid first Annual expenditure When was the last assessment on legal aid per capita in 2013 recognized in 1979 of legal aid needs conducted Priority areas for support Challenges in accessing legal aid h There is no specific law on legal aid, and the legal aid Legislative drafting advice  system faces severe deficiencies Development of action plans/policies  People may not know where to find legal aid; when they ask Development of quality criteria for legal aid providers  h for legal aid, it is not uncommon for state agencies to withhold Establishing paralegal systems  assistance or to encourage them to waive their right Institutional support to the Ministry of Justice to implement  There is a limited number of lawyers outside urban areas the reform of the legal aid system, with a focus on h Lawyers are paid very little for legal aid work, which affects h developping effective coordination between institutions providing legal aid their motivation Training  People may prefer to resolve issues through the informal h justice system or outside the court system, where legal aid has no role 115

116 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa Legal framework The right to legal aid was first recognized by law in 1979. A right to legal aid is Right to legal aid implicit in national process provisions, but it is not formally addressed in any law. A bill for a new specific law on legal aid was drafted in 2012, with strong in- The right to legal aid is guaranteed in: volvement by the Ministry of justice, the courts, the bar association, civil soci- 2 Constitution ety and international donors. This bill is currently under review by government. 2 Law on judicial procedure Criminal procedure law 2 Under the law, State-funded legal aid is to be provided at the national level. Civil procedure code 2 Law on pre-trial detention 2 Legal aid services typically include legal advice, legal representation before a Services included prosecutor, court and tribunal, legal assistance with taking any appropriate ac- as part of legal aid tion, and general assistance in navigating the justice system. The State does not yet provide specialized legal aid services for specific popu- lation groups, such as persons with disabilities, children, women and refugees, asylum seekers and stateless persons. Legal aid is provided upon request from the person who wants legal aid, from the Process for obtaining prosecutor or tribunals, from the bar association or from the legal aid provider. legal aid To receive legal aid, a person must prove eligibility by proving status as a recip- ient of welfare or state subsidies for indigent or vulnerable population groups. Legally, the Certificate of Indigence is requested. The State has not yet conducted any public information campaign to raise Awareness of the right awareness about the right to legal aid and how to access legal aid services, but to legal aid some awareness-raising activities have been undertaken by non-governmental organisations for more than a decade. Independent national experts estimate that the general population is ‘somewhat knowledgeable’ about the right to le- gal aid services, and about where and how to access them. 116

117 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa Delivery model The bar association has chief responsibility for the management of legal aid. A legal Legal aid authority aid board has not been created. While some legal aid services are provided through the bar association, with Organisation funding from private and international donors, the majority of services is pro- of legal aid services vided by civil society organisations and UN agencies, with support from local lawyers. Some legal aid providers are incentivized to provide pro bono services through requirements by law firms, which also value pro bono work as a means for their lawyers to acquire experience. Many lawyers and organisations also provide le- pro deo basis. gal aid on a To place a request for services from legal aid providers, the courts and the police Mechanism for contact the bar association, which maintains and coordinates appointments assigning legal aid and delivery of legal aid services. providers State-funded legal aid services are not available in rural areas. While some non- Accessing legal aid in state actors may provide legal aid services outside urban areas (notably though urban vs. rural areas mobile courts in the Eastern region of the country), the quality of these services tends to be lower than in urban areas. Legal aid providers in urban areas have more independence to challenge actions of other justice actors, since providers in rural areas often see judges and opposing counsel socially, which makes it dif- ficult to oppose them in proceedings. 117

118 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa Service providers Lawyers 1/7,176 N/A and other providers Licensed practicing Full-time /people lawyers /people legal aid lawyers Paralegals University-based Are not legally recognized and bar law clinics associations are often reluctant to work with them. Yet hundreds of paralegals are hired by civil society and international organisations to provide legal aid, mainly in rural areas. State-funded legal aid providers must have a law degree and show proof of Qualifications required passing a professional examination, be a member of the national bar, and have completed an apprenticeship or internship with a practicing lawyer. To be accredited to provide legal services, there are requirements for a parale- gal to complete a short course on legal issues, as well as an apprenticeship with a lawyer when possible. Legal aid providers are not required by law to engage in continuing education or skills training (and the State does not allot funds to this effect), but the bar as- sociation encourages its members to do so. 118

119 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa Finances Legal aid services are free of charge for those meeting eligibility criteria. Primary Costs to recipients legal aid services are provided free of charge by the bar association, which main- tains a roster of qualified lawyers available to provide legal aid. Civil society or- ganisations also provide legal advice to people who come to their offices. Legal aid is not treated as a separate component of the annual justice system Legal aid in the annual budget, but an allocation of approximately USD 60,000 per year has been made justice budget towards legal aid (“Justice Pro Deo ”) for several years. The funds, however, have never been disbursed. Specialized legal aid services for disadvantaged populations, and additional ser- vices such as independent investigation, experts, psychological or social work support, etc. are not financed by the State. The legal aid system if highly depen- dent on funding from international donors, which is mainly channelled through the bar association and civil society organisations. Legal aid providers are are not consistently paid for their services. When pay- Payments to legal ment is made, it comes from the national bar association or non-governmen- aid providers tal organisations. 119

120 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. obliged to provide legal aid on the basis of certain criteria. Rather, The State is not legal aid is assigned by authorised agencies at their discretion. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, or at least during questioning before formal charges are filed. (It takes approximately 5 hours for a legal aid provider to appear after notice is given that legal aid is needed in criminal cases.) Legal aid is also provided during trial, for any appeal or cassation, as well as for representation of prisoners in cases involving serious disciplinary charges. In criminal cases, legal aid institutions aim to ensure that the same provider rep- resents the accused/suspect at all stages of the case. It is prohibited for the police to interview someone in the absence of a lawyer, except when the police interviews the person as a witness, or when the person voluntarily waives this right. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are just as likely as private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/defen- dant in private before any contact with a state justice official’. ‘Bribery/corruption’, ‘the judge’s objective analysis of evidence and testimony’ 25-50% and ‘a well prepared or highly skilled lawyer’ are identified by national experts to be amongst the most influential factors in reaching a dismissal of charges or ac- Proportion of criminal court cases quittal in criminal cases. (2013) 120

121 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa Who is eligible? Legal aid in civil cases There are no legal provision as yet for legal aid to be provided in civil proceedings. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Estimated demand for legal aid services in civil cases Property issues Marital issues Child custody issues Labor disputes Contractual and inheritance disputes 40% From respondents For what actions is a party eligible for legal aid? Under the law, primary legal aid should be available to all, and legal aid should be provided throughout the proceedings, including for appeals or cassation. Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class ac- 60% tion cases, but there is public demand for such initiatives to address discrimina- tion, labour rights, consumer rights, environmental protection, and health. From complainants According to national experts, a major challenge faced by women is that legal Women’s access aid is not provided for family and related civil matters. Additionally, there are no to legal aid services specialized legal aid services for women, and very few female legal aid providers. As a result, experts report that women tend to see legal aid providers as lacking gender sensitivity, and may prefer not to seek legal assistance, also because they perceive court process to be too time consuming. Female victims of violence (including victims of sexual and gender-based vio- lence) only receive legal aid services in some legal proceedings. Similarly, court support services, such as interpretation and translation of documents, are also provided only in some proceedings. 121

122 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa The justice system has specialized courts and judges for representing child vic- Access to legal aid tims, child witnesses or suspected and accused children. for children When representing children, legal aid providers routinely reach out to parents, social workers and other childcare practitioners for support to assist the child throughout proceedings. In criminal cases involving suspected or accused children, diversion away from judicial proceedings is rarely used. People prefer to resolve disputes such as marital or family disputes, child custo- Legal aid and informal dy issues, and land and property issues through informal justice proceedings, justice systems because informal tribunals are more conveniently located, informal proceedings take less time and are more familiar to people, and judges or decision-makers know the parties and therefore can better judge what would be a just outcome. Legal aid services are very rarely provided in informal justice systems. There is no mechanism that allows for referrals of cases between the formal and infor- mal legal systems. Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings should cease until a legal aid provider arrives. Similarly, if a legal aid the quality of legal provider is unprepared or unqualified, a replacement legal aid provider is asked aid services to represent the party instead of the assigned provider. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, due to having too many cases, due to lacking expertise in the law or skills required by the specific case, due to incompatibility with the legal aid recipient, to a conflict of interest with the le- gal aid recipient, or when s/he feels the pay is too little to justify the time to be spent on the case. 122

123 Global Study on Legal Aid – Country Profiles Democratic Republic of Congo Sub-Saharan Africa The bar association is formally responsible for monitoring the quality of legal Monitoring aid services, but in practice, monitoring activities are have not yet been firmly and data collection established. on the quality of legal aid services There is an acute shortage of data in the justice system. For instance, no data is available on the number of criminal or civil cases filed in court where State- funded legal was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 123

124 Ghana Sub-Saharan Africa Ghana 26.79 million Population Unitary government system 53% 78% 65% 47% Male literacy rate Female literacy rate Rural population Urban population $1,590 0.885 GNI per capita Gender Development Index 0.925 0.9 $1,045 $4,126 $12,736 0.95 0.975 LOW LOW HIGH MID/HIGH HIGH MID MID/HIGH MID/LOW MID/LOW -30% 0.579 0.387 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.8 0.7 0.8 0.55 0.55 0.7 VERY HIGH HIGH MID LOW VERY HIGH HIGH LOW MID

125 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa Legal Aid at a Glance in Ghana <$0.02 Never conducted 1997 Most recent reform of Annual expenditure When was the last assessment the legal aid system of legal aid needs conducted on legal aid per capita in 2013 was carried out in 1997 People who received legal People’s trust in courts when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 11 pay a debt, during the past 3 years 28 Some Citizen survey, WJP Rule of Law Index 2015 A Little 27 34 No Trust 20% 3 3 100 % 0% Sample size: 120 Challenges in accessing legal aid Priority areas for support Legislative drafting advice  h Lack of lawyers Particularly acute shortage of lawyers outside urban areas  Development of action plans/policies h h Low pay of lawyers for legal aid work  Development of quality criteria for legal aid providers  People may not know where to find legal assistance h Establishing paralegal systems Institutional support h Little support among the population for spending  public funds to defend accused criminals Training on provision of specialized legal services to children, refugees, persons with physical and intellectual disabilities. 125

126 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa Legal framework The right to legal aid was first enacted into law in 1987, and the legal aid system Right to legal aid was most recently reformed in 1997 (Legal Aid Scheme Act 542) with strong in- volvement from civil society. The right to legal aid is guaranteed in: 2 Constitution A further restructuring of the national legal aid system is underway as part of Separate law on legal aid 2 a constitutional review, which would establish an independent constitutional 2 Law on judicial procedure body for legal aid outside the supervision of the Attorney-General. 2 Legal advice Services included 2 Legal representation as part of legal aid 2 Legal assistance (before national and international tribunals) General assistance in navigating the justice system 2 Execution of legal documents 2 Provision of legal information 2 Legal aid is provided upon request from the person who wants legal aid. ( The de- Process for obtaining termination is automatic if the case or legal aid recipient qualifies for legal aid.) legal aid To receive legal aid, a person must prove eligibility (evidence of low income or proof that the applicant’s claim has merit.) Alternatively, an official may deter- mine that the interests of justice require provision of legal aid. No proof is neces- sary in cases where the State is obliged by law to provide legal aid. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services has been conducted at least once over the to legal aid past year. According to independent national experts, public awareness about legal aid remains limited. 126

127 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa Delivery model The Ministry of Justice has chief responsibility for the management of legal aid. Legal aid authority A Legal Aid Board is appointed by the President of the countntry, with mem- bers of the bar, Supreme Court justices, the Department of Social Welfare, the Attorney-General, the General Legal Council (which oversees the training and licensing of lawyers), the Director of the Ghana School of Law, the Inspector- General of Police, the Accountant-General and the Executive Director of Legal Aid. The President nominates three additional qualified members, including a female lawyer. Members are selected by the organisation they work for, and ap- pointed by the President in accordance with the law. The Legal Aid Board has not been constituted since 2012. The public defender works in parallel to state-funded private practitioners: it Organisation coordinates appointments of private practitioners to legal aid cases; it super- of legal aid services vises, coaches or mentors private practitioners; and it conducts or organises training sessions for all providers of legal aid including both staff and private lawyers/paralegals. pro bono , they do so outside the formal While lawyers provide some services legal aid system, mainly as a means to practice and acquire experience and in an effort to prevent injustice. The Legal Aid Board maintains a roster of legal aid providers on duty, and indi- Mechanism for vidual demanders of legal aid as well as State agencies can contact the board assigning legal aid as needed. providers It is very difficult to access legal aid services in rural areas, but efforts are being Accessing legal aid in made to address this issue. Since 2013, the provision of legal aid has been ex- urban vs. rural areas tended beyond the ten regional capital cities to 19 district capitals which are peri-urban. 127

128 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa Service providers Lawyers 1/13,778 1/1,450,000 and other providers Full-time Licensed practicing /people lawyers /people legal aid lawyers University-based Paralegals law clinics State-funded legal aid providers must provide a proof of passing a profession- Qualifications required al examination (bar examination), and have completed an apprenticeship or in- ternship with a practicing lawyer. No law requires legal aid providers to engage in continuing education or skills training, and the State does not allocate funds towards this end. Paralegals must have experience working as legal assistant to lawyers, but do not need formal education training, as long as they have basic training in legal procedures. Finances Legal aid services for both criminal and civil cases are free of charge to those Costs to recipients meeting eligibility criteria. Primary legal aid services are provided free of charge at the office of the public defender, or other state-funded institutional legal aid provider. Civil society organisations also provide legal advice to people who come to their office. 128

129 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa Legal aid in the annual justice budget $0.02 Legal aid budget per capita in 2013 125% Annual legal aid budget increased by 125% from 2010 to 2013 Legal aid is a separate component of the annual justice budget. Meanwhile, the government does not provide separate funding for specialized legal aid ser- 36% vices to disadvantaged populations; this is provided for by international donors. Legal aid accounted for 36% of the There is a tendency for the State to prioritize allocations of public funds in the annual budget for prosecution of criminal cases in 2013 justice sector towards the police, prosecutors and judges, over legal aid lawyers. Legal aid providers work full-time in institutions funded by the State (e.g. pub- Payments to legal lic defenders’ office) and receive a monthly salary. Others are paid a fixed fee for aid providers each case they take. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime, and witnesses. The State is obliged to provide legal aid to children, persons who face the po- tential of death penalty or life imprisonment, persons earning the minimum dai- ly wage or less — or when the law notes that the interests of justice require it. 129

130 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa At what stage of a criminal case? Legal aid in criminal cases Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect/defendant’s freedom, or from the mo- ment charges are officially filed. (It takes approximately two hours for the pro- vider to appear, once a request is made.) The law also requires that legal aid be provided if an appeal is to be filed. In practice, however, the police does not always inform the suspect/defendant of his/her right to legal aid nor wait for a legal aid provider to be present before initiating the interview. (It is not prohibited for the police to interview someone as a witness, in the absence of a lawyer.) In criminal cases, legal aid institutions aim to ensure that the same provider rep- resents the accused/suspect at all stages of the case. 10-25% Proportion of criminal court cases To what extent are legal aid services in criminal cases seen as effective? (2013) Independent national experts estimate that legal aid lawyers are just as likely as private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/defen- dant in private before any contact with a state justice official’. However, experts find that legal aid lawyers are less likely than private lawyers to ‘conduct investi- gations to establish doubt about the suspect’s or defendant’s guilt even if s/he may be guilty’. National experts identify ‘a well prepared and/or highly skilled lawyer’ and ‘hir- ing a private lawyer’ to be amongst the most influential factors in reaching a dis- missal of charges or acquittal in criminal cases. 43% How serious are the following problems in criminal courts in the city where you live? People who believe that the police According to national experts, WJP Rule of Law Index 2015 always or often respects the basic rights of suspects Excessive pre-trial detention WJP Rule of Law Index 2015 Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious 130

131 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa Who is eligible? Legal aid in civil cases Under the law, a person is eligible for legal aid in civil cases if s/he meets a finan- cial threshold (minimum daily wage or less); if the person is a child; when the law notes that the interests of justice require it; when the merit of the parties’ claims is established; or when the case relates to the enforcement of constitu- tional provisions. Estimated demand for legal aid 5 types of civil cases for which legal aid services are most services in civil cases commonly sought and for which State-funded legal aid is available Property issues Child maintenance cases Marital issues 80% Child custody issues Labor disputes From respondents For what actions is a party eligible for legal aid? Under the law, primary legal aid is available to all. Legal aid is provided to assist with the drafting and filing of complaints and responses, with gaining access to 20% State services, and with conducting depositions or other official queries. Legal From complainants aid is also available for the provision of protective services for victims of violence, for mediation, and throughout the proceedings, from pre-trial hearings to any appeal (including appeals to international tribunals) or cassation. Public interest litigation / class action cases: State-funded legal aid is provided for public interest litigation / class action cas- es (to address cases of discrimination, labour rights, consumer rights, environ- mental protection, etc.) It is however rare for staff lawyers of the public defender to jointly challenge common violations of national and international due pro- cess rights and human rights. 131

132 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious According to national experts, one of the main challenges faced by women in ac- Women’s access cessing legal aid is the lack of specialized legal aid services for women, and the to legal aid services lack of female legal aid providers. Experts also note that women lack awareness about the availability of legal aid services at little or no cost, and about where to find legal assistance. Many many not understand how legal aid services can help them. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services only when they seek compensation . They can ben- efit from court support services such as interpretation and translation of docu- . only in some legal proceedings ments 132

133 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa The public defender does not have specialized providers/units for representing Access to legal aid child victims, child witnesses or suspected and accused children. for children When representing children, legal aid providers routinely reach out to parents, social workers and other childcare professionals for support to assist the child throughout proceedings. 75% In more than 75% of cases where a child was found culpable, an alternative to imprisonment was imposed (when State-funded legal aid was provided) (2013) According to national experts, people prefer to resolve disputes through infor- Legal aid and informal mal justice proceedings because informal tribunals are more conveniently lo- justice systems cated, especially for those living in remote areas; informal justice proceedings take less time; people understand better how they work; and they often lead to a negotiated outcome that is acceptable to all parties. There are mechanisms that allow referrals between the formal and informal jus- tice systems, and legal aid service providers can work across the different sys- tems. A provider supporting informal justice processes requires only basic train- ing on legal matters and in alternative dispute resolution, but s/he must be a reputable member of the community. 30% 40% Disputes resolved through Disputes resolved through formal customary or religious mediation mediation or alternative dispute or adjudication processes (2013) resolution processes (2013) 133

134 Global Study on Legal Aid – Country Profiles Ghana Sub-Saharan Africa Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a legal aid provider arrives — but only in cases where the quality of legal the person receiving legal aid is involved in a criminal matter for which s/he could aid services suffer death or life imprisonment . When a person receives legal aid services from a provider who is unprepared or unqualified, a replacement legal aid provider is asked to represent the party. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to having too many cases, or lacking expertise in the law or skills required by the specific case, due to incom- patibility or conflict of interest with the legal aid recipient, or when they feel the pay is too little to justify the time they spend on it. The quality of legal aid service is monitored by the Legal Aid Board, which re- Monitoring views complaints by legal aid recipients lodged with the Legal Aid Board. and data collection on the quality There is an acute lack of data across the system. For instance, data about children of legal aid services is not recorded separately, and no data is available on the resolution of cases pri- or to their transfer to court (e.g. for cases diverted from the formal justice system without trial, through mediation, warning or apology). 134

135 Kenya Sub-Saharan Africa Kenya 44.86 million Population Unitary government system 25% 78% 67% 75% Male literacy rate Female literacy rate Rural population Urban population $1,290 0.913 GNI per capita Gender Development Index 0.925 0.9 $1,045 $4,126 $12,736 0.95 0.975 LOW LOW HIGH MID/HIGH HIGH MID MID/HIGH MID/LOW MID/LOW -31.3% 0.548 0.377 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.8 0.7 0.8 0.55 0.55 0.7 VERY HIGH HIGH MID VERY HIGH HIGH MID LOW LOW

136 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Legal Aid at a Glance in Kenya 2016 N/A 2016 The most recent reform of the Annual expenditure An assessment of legal aid needs is on legal aid per capita in 2013 planned to be conducted in 2016, legal aid system took place in as per the 2013-17 Strategic Plan , when the President of April 2016 Kenya signed the Legal Aid Act 2016 of the Office of the Attorney General and Department of Justice People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 5 A lot pay a debt, during the past 3 years Some 41 Citizen survey, WJP Rule of Law Index 2015 A Little 29 No Trust 25 20% 3 3 100 % Sample size: 179 0% Priority areas for support Challenges in accessing legal aid Shortage of lawyers in the country, especially outside urban Legislative drafting advice h areas Development of action plans/policies  h People sometimes prefer to resolve issues through the Development of quality criteria for legal aid providers  informal justice system, where legal professionals do not Establishing paralegal systems   Institutional support typically participate Training  Lack of legal empowerment and awareness among citizens, h especially amongst vulnerable and marginalized segments of the population. For instance, people often do not know where to find legal assistance. h Inadequate funding for the legal aid sector Low public confidence in some justice sector institutions, h such as the police and the prosecution 136

137 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Legal framework The right to legal aid was first recognized for capital offences (e.g. murder) un- Right to legal aid der the Constitution of 1963, and was reaffirmed in the new Constitution of Kenya in 2010. On 22 April 2016, the President of Kenya signed the Legal Aid The right to legal aid is guaranteed in: Act 2016, which establishes a legal and institutional framework for a national 2 The Constitution legal aid scheme in Kenya. Regulations on implementation are under develop- A separate law on legal aid 2 2 Law on judicial procedure ment and thus, some aspects of the new legal aid system remain unspecified. Law on the judiciary 2 Civil procedure code 2 State-funded legal aid is available at national and county levels, specifically in 2 Criminal procedure law Kisumu, Eldoret, Nakuru, Mombasa and Isiolo counties. Implementing regulations 2 for the law on legal aid In both criminal and civil cases, legal aid is provided in the form of legal ad- Services included vice, legal assistance in courts, provision of legal information and training of in- as part of legal aid digents for self-representation in courts. Legal aid lawyers also provide general assistance in navigating the justice system. In both criminal and civil cases, specialized legal aid services are provided to per- sons with disabilities, children, refugees, asylum seekers, stateless persons, and internally displaced persons. Legal aid is provided upon request from the person who wants legal aid, or Process for obtaining upon request from a legal aid provider. In both criminal and civil cases, a per- legal aid son must prove his/her eligibility by providing evidence of low income (if em- ployed), and/or membership of a protected group. In certain cases, it is nec- essary for the agency responsible for the appointment of legal aid lawyers to determine that the interests of justice require the provision of legal aid in the given specific case. No proof is necessary in cases where the State is obliged to provide legal aid under the law, such as for persons charged with murder. Public information campaigns to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services have been conducted regularly by the ju- to legal aid diciary and the National Legal Aid and Awareness Programme (NALEAP) over the past few years. 137

138 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Delivery model The institution which will have chief responsibility for the management and ad- Legal aid authority ministration of legal aid will be determined once the Legal Aid Bill of 2015 receives Presidential assent. This being said, the Legal Aid Bill foresees that a Legal Aid Board would be estab- lished, composed of a chairperson appointed by the President, a judge of the High Court nominated by the Chief Justice, the Principal Secretary in the Ministry with responsibility for matters relating to legal aid, the Principal Secretary in the Ministry with responsibility for matters relating to finance, and other members, as specified in the Legal Aid Bill. Members of the Legal Aid Board are to be appointed by the Cabinet Secretary. Kenya has a State-funded legal aid scheme, the National Legal Aid and Organisation Awareness Programme (NALEAP), which was established in 2008 as a pilot of legal aid services project by the Ministry of Justice to enhance access to justice for the poor and marginalised groups. This program organises the provision of legal aid services mainly through pro bono schemes and through the Kenyan National Commission on Human Rights, which provides legal aid to persons alleging vi- olation of their human rights and fundamental freedoms. pro bono under the auspices of bar association Lawyers who provide legal aid (the Law Society of Kenya) earn a point in continuous legal education (CLE). Lawyers are required to have five points under CLE in order to be eligible for re- newal of their annual practicing certificates. According to the Legal Aid Bill 2015, State agencies are mandated to contact the Mechanism for Legal Aid Board (not yet established, but foreseen by the Bill), which will main- assigning legal aid tain a duty roster of qualified legal aid providers. providers Currently, in cases of the Pauper Brief Scheme for the most financially deprived litigants, the registrar of the High Court has a database of lawyers who are avail- able to provide pro bono services. In other cases which warrant legal aid, the basis. courts may assign an advocate in court to take up a case on a pro bono 138

139 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Legal aid services are available in rural areas. For instance the National Legal Accessing legal aid in Aid and Awareness Programme (NALEAP) has field offices in Kisumu, Eldoret, urban vs. rural areas Nakuru, Mombasa and Isiolo counties, and the Kenyan National Commission on Human Rights, which provides legal aid in cases of alleged human rights viola- tions, has field offices in Kisumu, Mombasa and Isiolo. Other legal aid providers are mostly concentrated in urban areas. Service providers Lawyers 1/6,322 N/A and other providers Full-time Licensed practicing /people legal aid lawyers /people lawyers Civil society Paralegals University-based organisations law clinics Non-state legal aid providers include organisations such as the Federation of Women Lawyers in Kenya, which provides legal aid to indigent women, the CRADLE, which assists children, the International Justice Mission, which assists offenders, and the Legal Resources Foundation, which assists remandees. 139

140 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Regulations to set qualifications for legal aid providers will be developed once Qualifications required the Legal Aid Bill receives Presidential assent. Although qualification requirements for paralegals depend on the type of case, in general, paralegals are required to complete a professional paralegal train- ing course conducted by civil society organisations such as Legal Resources Foundations. The Legal Aid Bill will provide criteria for the accreditation of paralegals. The Legal Aid Bill will also establish mechanisms for continuous education of le- gal aid providers. Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 Yes. The recently adopted Legal Aid Act, 2015 explicitly recognizes paralegals. Under the Act, the National Legal Aid Service shall develop programs for the training and certification of paralegals, in consultation with the Council for Legal Education. Section 2 of the Act defines an “accredited paralegal” as “a person ac- credited by the Service to provide paralegal services under the supervision of an advocate.” It also states that a “paralegal” means a person employed by the Service or an accredited legal aid provider who has completed a training course in the relevant field of study in an institution approved by the Council of Legal Education”. Does any public revenue fund paralegals? No, public revenue is not currently funding paralegals. However, the Legal Aid Act, 2015 leaves open the possibility that paralegals would be able to receive public funding through the newly created Legal Aid Fund. Can paralegals engage in litigation (with or without the help of lawyers)? No, paralegals cannot engage directly in litigation with or without the help of lawyers. Paralegals are, however, able to participate in several other steps of the litigation process leading up to the time that a case is presented to the court, such as providing legal advice and preparing documents relevant to litigation. Are there boards that monitor community paralegals? Yes, the National Legal Aid Service serves as a primary monitoring body for para- legals and legal aid providers, and the Council of Legal Education provides ad- ditional oversight in the areas of education and training. Furthermore, the NLAS and the Council of Legal Education joint develop programs for legal aid educa- tion and the training and certification of paralegals. 140

141 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Finances Primary legal aid services are free of charge and available at the offices of Costs to recipients NALEAP and civil society organisations, as well as at legal advice centres in cit- ies and towns. The Judiciary, together with the Law Society of Kenya, hold a Legal Aid Week during which the public can seek legal advice on specific cases. In criminal cases, the State covers all costs of legal aid services to those meet- ing eligibility criteria. In civil cases, a legal aid recipient may be requested to pay a percentage of the cost, as established by law, including, inter alia , court filing fees, unless the court allows the case to be filed under the pauper scheme for the most financially deprived. Legal aid in the annual justice budget $0.01 Legal aid budget per capita in 2013 Legal aid is not a separate component in the annual justice budget. In criminal cases, legal aid providers either receive a fixed fee for each case Payments to legal or work full-time in institutions funded by the State, such as NALEAP and the aid providers National Human Rights Commission. The government has approved a token payment for pro bono lawyers, payable upon completion of a case. 141

142 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Provision of legal aid Who is eligible? Legal aid in criminal cases to persons arrested and detained on crimi- available Under the law, legal aid is nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. obliged to provide legal aid when it is required by the interests of The State is justice or due to the case’s gravity, complexity, or case type, as identified in the law, such as cases involving children or cases where an accused person has been charged with murder. At what stage of a criminal case? Under the law, legal aid is provided from the moment a law enforcement rep- resentative restricts the suspects/defendant’s freedom, as well as during trial. 23% How serious are the following problems in criminal courts People who believe that the police in the city where you live? always or often respects the basic According to national experts, WJP Rule of Law Index 2015 rights of suspects Excessive pre-trial detention WJP Rule of Law Index 2015 Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to indigent persons, children, persons with physical and mental disabilities, internally displaced persons, and refugees. Legal aid is also provided when it is required by the interests of justice or due to the case’s gravity, complexity, or case type, as identified in the law, provided that the claim has merit. 142

143 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Child custody issues Property issues Marital disputes 50% From respondents Administrative matters Labor disputes Public interest litigation / class action cases: 50% Legal aid for public interest litigation and class action cases is expected to be provided under the Legal Aid Bill of 2015. From complainants How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious NALEAP and a number of civil society organisations provide legal aid female vic- Women’s access tims of violence (including victims of sexual and gender based violence). Such as- to legal aid services sistance, however, is not available countrywide. 143

144 Global Study on Legal Aid – Country Profiles Kenya Sub-Saharan Africa The justice system has specialized courts, judicial officers and police units for Access to legal aid children who are suspected or charged with a criminal offence. Furthermore, for children NALEAP and a number of civil society organisations provide legal aid to child offenders. Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative dispute resolution processes, and there are fledging mech- justice systems anisms that allow cases to be referred between the formal and informal justice systems. Legal aid service providers can work across different systems. Regulations to set qualifications for legal aid providers to support formal medi- ation/alternative dispute resolution processes will be developed once the Legal Aid Bill receives Presidential assent. Quality safeguards The Legal Aid Bill of 2015 requires the courts to bring to the attention of the pro- Accountability for posed Legal Aid Board all litigants/cases that require legal aid. It also obligates the quality of legal the courts and any justice institution (including the police, prisons, etc.) to in- aid services form persons in their lawful custody of the availability of legal aid services, and to record the responses of the litigant. There are currently no means of assessing if a legal aid provider is unprepared or unqualified. However, such mechanisms are expected to be established as part of regulations under the Legal Aid Bill. The quality of legal aid services will be monitored by the soon-to-be established Monitoring Legal Aid Board, the Ministry of Justice, and a peer review team established by and data collection the legal aid authority or the bar association. on the quality of legal aid services The data for monitoring the quality of legal aid services will be collected by re- viewing complaints from legal aid recipients about a legal aid provider’s actions, and by monitoring services provided in court. There is an acute lack of data across the system. For instance, no data is available on the number of criminal or civil cases filed in court where State-funded legal aid was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a cases’ transfer to court. 144

145 Mauritania Sub-Saharan Africa Mauritania 3.97 million Population Unitary government system 49% 72% 59% 41% Rural population Male literacy rate Female literacy rate Urban population 0.816 $1,270 Gender Development Index GNI per capita 0.95 0.925 0.9 $1,045 $4,126 $12,736 0.975 MID/HIGH MID/LOW LOW MID/HIGH MID HIGH HIGH MID/LOW LOW -33.4% 0.337 0.506 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.8 0.55 0.7 0.7 0.8 0.55 MID MID HIGH VERY HIGH HIGH VERY HIGH LOW LOW

146 Global Study on Legal Aid – Country Profiles Mauritania Sub-Saharan Africa Legal Aid at a Glance in Mauritania N/A Never conducted 2006 Annual expenditure Most recent reform of the legal When was the last assessment on legal aid per capita in 2013 of legal aid needs conducted aid system carried out in 2006 Challenges in accessing legal aid Priority areas for support Limited number of lawyers in the country, especially h Legislative drafting advice Development of action plans/policies  outside urban areas Lawyers are paid very little for legal aid work h  Development of quality criteria for legal aid providers h Establishing paralegal systems  People do not know where to find legal assistance People tend to prefer to resolve issues through Institutional support h the informal justice system or outside the court system, Training where legal aid has no role 146

147 Global Study on Legal Aid – Country Profiles Mauritania Sub-Saharan Africa Legal framework The right to legal aid was first recognized by law in 1966, and the legal aid sys- Right to legal aid tem was most recently reformed in 2006. The right to legal aid is guaranteed in: 2 Separate law on legal aid Law on the judiciary 2 Under the law, services included as part of “legal aid” include legal advice and Services included legal representation in front of a prosecutor, court or tribunal, in both criminal as part of legal aid and civil cases. Specialized legal aid services are provided by the State for specific population groups, including children, women and migrants. Legal aid is provided upon request from the person who wants legal aid. To Process for obtaining receive legal aid, a person must prove eligibility by showing evidence of low legal aid income. The State has not yet conducted any public information campaign to raise Awareness of the right awareness about the right to legal aid and how to access legal aid services, but to legal aid non-state actors have done so in recent years. Delivery model A legal aid board, which falls under the authority of the Ministry of Justice, has chief Legal aid authority responsibility for the management of legal aid. A Legal Aid Board is appointed by the Executive and the bar association, with mem- bers of the bar, representatives of the judiciary (other than the Supreme Court) and the Ministry of Justice, officials specializing on legal aid, members of the national human rights institution and the child protection commission, and representatives of civil society organisations. 147

148 Global Study on Legal Aid – Country Profiles Mauritania Sub-Saharan Africa Legal aid services are provided through public defender institutions. Organisation of legal aid services Courts contact the public defender, which coordinates appointments and de- Mechanism for livery of legal aid services. assigning legal aid providers Legal aid services are not available in rural areas. Accessing legal aid in urban vs. rural areas Service providers Lawyers 1/14,702 N/A and other providers Licensed practicing Full-time /people /people legal aid lawyers lawyers None Paralegals University-based Are allowed to provide legal law clinics advice and legal information in police precincts, or prisons, in both civil and criminal cases. 148

149 Global Study on Legal Aid – Country Profiles Mauritania Sub-Saharan Africa Lawyers who work as State-funded legal aid providers must be members in the Qualifications required national bar. Legal aid providers are required by law to engage in continuing education or skills training. Finances Legal aid services for both criminal and civil cases are free of charge to those Costs to recipients meeting eligibility criteria. Primary legal aid services are available free of charge at the office of the public defender. Legal aid is not a separate component of the annual justice budget. Legal aid in the annual justice budget Legal aid providers receive a fixed fee for each case. Payments to legal aid providers 149

150 Global Study on Legal Aid – Country Profiles Mauritania Sub-Saharan Africa Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges. to provide provide legal aid to persons who meet a financial The State is obliged threshold and to children. At what stage of a criminal case? Under the law, legal aid should be provided from the moment charges are of- ficially filed. <10% Proportion of criminal court cases (2013) Who is eligible? Legal aid in civil cases Under the law, a person is eligible for legal aid in civil cases if s/he meets a finan- cial threshold. Estimated demand for legal aid 3 types of civil cases for which legal aid services are most services in civil cases commonly sought and for which State-funded legal aid is available 1% From respondents Marital disputes Tort claims Child custody issues Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class ac- tion cases (to address cases of discrimination, labour rights, consumer rights, environmental protection, etc.) 99% From complainants 150

151 Global Study on Legal Aid – Country Profiles Mauritania Sub-Saharan Africa Female victims of violence (including victims of sexual and gender-based vio- Women’s access lence) do not receive legal aid services in all legal proceedings. They also do not to legal aid services have access to court support services, such as interpretation and translation of documents. The justice system has specialized providers/units for representing child victims, Access to legal aid child witnesses or suspected and accused children, including specialized courts for children and judges, specialized prosecutors, specialized police officers/units, and spe- cialized lawyers and paralegals. Diversion away from judicial proceedings is usu- ally used in criminal cases involving suspected or accused children. >50% 50-75% 50-75% More than 50% of cases In 2013, when State-funded In 2013, an alternative to , that of children suspected or legal aid was provided imprisonment was imposed in charged with a criminal proportion stayed the same 50-75% of cases where a child offence are diverted from (50-75%) was found culpable the formal justice system without trial (2013) Informal justice mechanisms do allow for a lawyer or paralegal to represent par- Legal aid and informal ties or provide advice in customary or religious mediation/adjudication pro- justice systems cesses. Furthermore, there are mechanisms that allow referrals between the formal and informal justice systems, and legal aid providers can work across dif- ferent systems. Providers of legal aid assistance in formal mediation and alternative dispute res- olution processes must have a law degree and a paralegal certificate; those as- sisting customary or religious mediation/adjudication processes must be repu- table members of the community. 151

152 Global Study on Legal Aid – Country Profiles Mauritania Sub-Saharan Africa Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a legal aid provider arrives. If a legal aid provider is un- the quality of legal prepared or unqualified, a replacement provider is asked to represent the party aid services instead of the assigned provider. The legal aid board is responsible monitoring the quality of legal aid services; Monitoring data is collected through assessments performed by justice actors (police, pros- and data collection ecutors, judges). on the quality of legal aid services 152

153 Mauritius Sub-Saharan Africa Mauritius 1.261 million Population Unitary government system 40% 92% 87% 60% Male literacy rate Female literacy rate Rural population Urban population $9,630 0.950 GNI per capita Gender Development Index 0.925 0.9 $1,045 $4,126 $12,736 0.95 0.975 LOW LOW MID/LOW HIGH HIGH MID MID/LOW MID/HIGH MID/HIGH -14.2% 0.777 0.666 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.8 0.7 0.8 0.55 0.55 0.7 VERY HIGH HIGH LOW VERY HIGH MID LOW MID HIGH

154 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Legal Aid at a Glance in Mauritius 2012 Within the past 5 years $0.26 The latest reform of the legal aid When was the last assessment Annual expenditure of legal aid needs conducted on legal aid per capita in 2013 system took place in 2012 Challenges in accessing legal aid Priority areas for support h Low pay of lawyers for legal aid work  Legislative drafting advice h People may lack confidence in the quality of legal aid services  Development of action plans/policies h Development of quality criteria for legal aid providers  People may not know where to find legal assistance Establishing paralegal systems  and may not be aware that legal aid services are available Institutional support  at little or no cost General perception that legal aid lawyers are more loyal Training  h to state agencies than to legal aid recipients Little support among the population for spending public h funds to defend accused criminals 154

155 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Legal framework Legal Aid was first recognized by the Legal Aid and Legal Assistance Act (for- Right to legal aid merly called the Legal Aid Act) of 1974. The right to legal aid is guaranteed in: The latest reform of the legal aid system took place in 2012, when the Parliament The Constitution 2 adopted the Legal Aid (Amendment) Act which introduced provision of legal A separate law on legal aid 2 assistance during police enquiry and bail application for offences. 2 Implementing regulations for the law on legal aid State-funded legal aid is available at national and local levels. 2 Criminal procedure law For both civil and criminal cases, legal aid is provided in the form of legal repre- Services included sentation (in courts) and legal assistance (before national tribunals). In criminal as part of legal aid cases, legal aid providers also supply legal information. Specialized legal aid services are not provided by the State to disadvantaged population groups. Legal aid is provided upon request from the person who wants legal aid. The Process for obtaining court presiding over a case must also inquire and assess eligibility during the legal aid first appearance of the parties. Section 4(b) of the Legal Aid and Legal Assistance Act states that in both crimi- nal and civil cases, a person must prove her/his eligibility by providing a sworn statement on low income. The person seeking legal aid services must also sat- isfy the merits test. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in the past to legal aid year, and provided specific contact details of relevant offices to go to for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 155

156 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Supreme Court, the Intermediate Court, the Industrial Court and the District Court. These courts are responsible for overseeing and coordinating the le- gal aid appointment mechanisms, for establishing the national legal aid strategy and policy, and for maintaining performance standards. In criminal cases, applications for legal aid services must be filed with a Organisation Magistrate, the Chief Justice or a designated judge. Some legal aid lawyers pro- of legal aid services vide assistance in the form of pro bono services, which is a condition for mem- bership in the bar association. It is also regarded as a means for lawyers to prac- tice and acquire experience. Magistrates, Chief Justices or designated judges verify that applications for le- Mechanism for gal aid are well founded, in which case they assign a barrister or attorney to the assigning legal aid applicant. providers Legal aid services are available in both rural and urban areas. The quality of legal Accessing legal aid in aid services depends on each individual legal aid provider. urban vs. rural areas 156

157 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Service providers Lawyers 1/2,212 N/A and other providers Licensed practicing Full-time /people legal aid lawyers /people lawyers Not applicable Paralegals University-based Are not allowed to provide legal aid law clinics Legal aid providers must show proof of passing a professional examination (bar Qualifications required examination). They must also be members of the bar and have completed an in- ternship with a practicing lawyer. The requirement to undergo periodic skills training and periodic testing is im- posed by the bar association on its members, and by the State on all legal aid providers. However, the State does not allot funds towards such continuing ed- ucation / training. 157

158 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Finances Primary legal aid services free of charge are available at the offices of civil soci- Costs to recipients ety organisations. The State covers all legal aid costs in criminal and civil cases to those meeting eligibility criteria. Legal aid in the annual justice budget $0.26 Legal aid budget per capita in 2013 Legal aid is a separate component in the annual justice system budget. The budget for legal aid is determined by the Parliament, the Ministry of Justice and the judiciary. The bar association, full-time legal aid providers, and ex officio ap- pointed lawyers also participate in budgetary decisions. Specialized legal aid services for disadvantaged populations are funded by the 300% State with substantial contribution from private actors. The annual legal aid budget for Additional services, such as independent investigation, experts, clerical assis- criminal and civil cases increased by 300% from 2010 to 2013 tance etc., are not covered by the State. In both criminal and civil cases, legal aid providers receive a fixed fee for each Payments to legal case. aid providers 158

159 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. At what stage of a criminal case? Under the law, qualified legal assistance may be requested from the moment a State agency begins consideration of whether to impose pre-trial detention, or at least from the moment charges are officially filed. It is also provided during tri- al and for a first appeal. It is not prohibited by law for police to interview a per- son in the absence of a lawyer. To what extent are legal aid services in criminal cases seen as effective? 0.01% Comparing the services of legal aid providers to services of private lawyers, in- In 2013, State-funded legal aid was dependent national experts estimate that legal aid providers are less likely than provided in 0.01% of criminal cases private lawyers to conduct investigation to establish doubt about the suspect’s/ defendant’s guilt even if this person may be guilty, to communicate with the de- fendant’s family about the case when requested by the defendant, or to prepare written motions and requests of the court, police or prosecution. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the 6.5 judge’s objective analysis of evidence and testimony’, and ‘the strength of the In 2013, the number of criminal cases evidence’ to be amongst the most influential factors in reaching a dismissal of filed in court was roughly 6.5 times higher than the number of civil/ charges or acquittal in criminal cases. administrative cases 159

160 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold, provided that a case satisfies a merit test. Estimated demand for legal aid 4 types of civil cases for which legal aid services are most services in civil cases commonly sought and for which State-funded legal aid is available Child custody issues Tort claims 90% From respondents Labor disputes Property issues 10% Legal aid services are also sought for marital disputes, although legal aid is not available for these cases. From complainants For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with drafting and filing complaints and responses, protecting vic- tims of violence, and conducting depositions or other official queries. Legal aid can also be provided throughout pre-trial hearings and during trial. Public interest litigation / class action cases: State-funded legal aid is provided for public interest litigation / class action cases (e.g. to address cases of discrimination, labor rights, consumer rights, etc.), but independent national experts are of the view that there is little public de- mand for legal aid to be provided in such cases. 11.5% In 2013, State-funded legal aid was provided in roughly 11.5% of all civil/administrative cases filed in court 160

161 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Even though there are no specialized legal aid services for women generally, fe- Women’s access male victims of violence (including victims of sexual and gender-based violence) to legal aid services receive legal aid services and court support services (such as interpretation and translation of documents) in all legal proceedings. According to national experts, an important challenge faced by women in ac- cessing legal aid concern means tests for eligibility to legal aid, which often con- sider overall household income rather than the women’s income specifically, which tends to be considerably lower. Experts also note that women may find it difficult to confide in a (mostly male) legal aid provider and share intimate in- formation related to a case. A general lack of awareness about legal aid services is also identified as a challenge: women may not know where to find legal assis- tance, or may be unaware that legal aid services are available at little or no cost. There is no specialized division or personnel in the justice system to work with Access to legal aid child victims, child witnesses, or suspected and accused children. for children When representing children, legal aid providers often reach out to parents, psychologists and other childcare professionals for support to assist the child throughout proceedings. According to national experts, there is no noticeable difference regarding the use of diversion and the use of alternatives to pre-trial detention and to impris- onment in cases where children are represented by legal aid providers and in cases where they are represented by private lawyers. However, national experts observe that legal aid providers specialized in children’s rights perform better on this front than non-specialized legal aid lawyers. Informal justice proceedings are mainly used to resolve disputes related to mar- Legal aid and informal ital or family issues, informal contracts, and labor agreements. justice systems National experts explain that people prefer to resolve disputes through infor- mal justice proceedings because they take less time and because of a gener- al perception that they often lead to a negotiated outcome that is acceptable to all parties. Informal justice mechanisms allow a lawyer to provide assistance in formal me- diation/alternative dispute resolution processes, and there are mechanisms that allow for cases to be referred between the formal and informal justice systems. 161

162 Global Study on Legal Aid – Country Profiles Mauritius Sub-Saharan Africa Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a qual- the quality of legal ified legal aid provider arrives. This can sometimes be problematic as there are aid services no formal means of assessing a legal aid provider’s qualifications or level of preparedness. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid due to a conflict of interest with the legal aid recipient. The quality of legal aid services is monitored by the judiciary. Data is mainly col- Monitoring lected by reviewing complaints by legal aid recipients about a legal aid provid- and data collection er’s actions. on the quality of legal aid services There are still considerable data gaps in the justice system. For instance, no data is available on case resolution prior to a case’s transfer to court. 162

163 South Africa Sub-Saharan Africa South Africa 54 million Population Unitary government system 64% 95% 93% 36% Male literacy rate Female literacy rate Rural population Urban population $6,800 0.948 GNI per capita Gender Development Index 0.925 0.9 $1,045 $4,126 $12,736 0.95 0.975 LOW LOW MID/LOW HIGH HIGH MID/HIGH MID/LOW MID/HIGH MID -35.7% 0.666 0.428 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.8 0.7 0.8 0.55 0.55 0.7 VERY HIGH HIGH LOW VERY HIGH HIGH MID MID LOW

164 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Legal Aid at a Glance in South Africa $1.87 Within the past 5 years Early 2000s The latest reform of the legal When was the last assessment Annual expenditure aid system was carried out in on legal aid per capita in 2013 of legal aid needs conducted the early 2000s People who received legal People’s trust in courts when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 12 pay a debt, during the past 3 years 56 Some Citizen survey, WJP Rule of Law Index 2015 A Little 19 No Trust 13 35% 3 3 Sample size: 54 0% 100 % Challenges in accessing legal aid Priority areas for support Shortage of lawyers, especially outside urban areas, Legislative drafting advice h and little pay for legal aid work Development of action plans/policies h The bar association is opposed to allowing paralegals  Development of quality criteria for legal aid providers to fill the gap of available lawyers  Establishing paralegal systems General perception that it is more important to cover h Institutional support Training the cost of police, prosecutors and judges than to spend  Non-governmental providers of legal aid require support public funds on lawyers to comply with the governance requirements for accessing h Little support among the population for spending public funds to defend accused criminals State funding People sometimes lack confidence in the quality h of legal aid services and may not understand how legal aid services can help them 164

165 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Legal framework The right to legal aid was first recognized in 1970. Right to legal aid A substantial reform of the legal aid system took place in the early 2000s, to re- The right to legal aid is guaranteed in: form the court-appointed lawyer model in place since 1969 (where legal aid The Constitution 2 services were delivered by private lawyers) into a public defender scheme. The 2 A separate law on legal aid Ministry of Justice, the courts, the legislative branch and civil society associa- Criminal procedure law 2 tions played an instrumental role in introducing this reform. 2 Labour Relations Act 66 of 1995 2 Prevention of Illegal Eviction State-funded legal aid is available at national, regional and local levels. from Unlawful Occupation Act 19 of 1998 Mental Health Care Act 17 of 2002 2 2 Restitution of Land Rights Act 22 of 1994 2 Promotion of Equality and Pre- vention of Unfair Discrimination Act 4 of 2000 2 Refugees Act 130 of 1998 Children’s Act 38 of 2005 2 For both civil and criminal cases, legal aid is provided in the form of legal advice Services included and information, legal representation (before a court), legal assistance and gen- as part of legal aid eral assistance with navigating the justice system. Specialized legal aid services for disadvantaged population groups are provided by both State-funded legal aid institutions and civil society organisations, spe- cifically for persons with disabilities, children, women, the elderly, migrants, ref- ugees, asylum seekers or stateless persons, internally displaced persons, indige- nous populations, ethnic or religious minorities, and LGBT. 165

166 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa The process for obtaining legal aid is generally initiated upon request from the Process for obtaining person who wants legal aid, but in civil cases, an assessment of merit is also re- legal aid quired. The determination is automatic if the case or legal aid recipient quali- fies for legal aid services, or if the gravity or complexity of the matter justifies the provision of legal assistance. To prove eligibility to receive legal aid in both criminal and civil cases, applicants must provide evidence either of low income or of their status as recipients of welfare; alternatively, they can give their word that they meet financial or vul- nerability criteria. In civil cases specifically, a person might also have to provide evidence of South African citizenship. In both civil and criminal cases, a court can order that legal aid be provided if it is initially refused. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State at least once in to legal aid the past year, and included contact details of offices providing legal aid services. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. Delivery model An independent self-governing legal aid board (“Legal Aid South Africa”) has the Legal aid authority chief responsibility for the management of legal aid. The Board includes members of the bar as well as representatives of the judicia- ry, the Ministry of Justice, civil society organisations, universities with law clinics and paralegal associations. The law requires that certain qualifications be represented amongst board members. Members are appointed by the Executive after a com- petitive selection process. 166

167 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Legal aid services in criminal and civil cases are organised through the in- Organisation dependent legal aid board, Legal Aid South Africa, which delivers legal aid of legal aid services through the operation of 64 justice centers and 64 satellite offices across the country. The Board works in parallel to State-funded private practitioners (rural law firms, public interest law firms, university law clinics and paralegal advice offices) which take assignments from Legal Aid South Africa, in exchange for remuneration by the State. The majority of legal aid providers (including paralegals) are full-time salaried employees of the legal aid administration. Private practitioners are used only when a justice center cannot handle a case because of a conflict of interest or lack of capacity, or if there is no justice center in the location of the client. Provision of pro bono legal services is regarded as a means to practice and ac- quire experience, and is set as a condition for membership in the bar. Private law firms have also made it a requirement. To request the services of a legal aid provider, the courts and/or the police con- Mechanism for tact legal aid lawyers in the order listed on a duty roster (computerized appoint- assigning legal aid ment system) maintained by the legal aid administration. Legal aid providers providers can also be found on duty in certain courts and police precincts. Legal aid services are available in rural areas, but national independent experts Accessing legal aid in note that the quality of legal services tends to be higher in urban areas where urban vs. rural areas legal aid providers have more independence to challenge actions of other jus- tice actors. 167

168 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Service providers Lawyers 1/2,700 1/120,000 and other providers Licensed practicing Full-time /people legal aid lawyers lawyers /people 1/15,428 University-based Paralegals /people Civil society law clinics organisations Are allowed to provide primary legal aid, conduct mediation and assist with the preparation of legal documents, provided students are supervised by a faculty member or practicing lawyer. All law graduates in South Africa must must undertake an internship to assist the legal aid board before admission to practice. Legal aid providers must have a law degree, show proof of passing a profession- Qualifications required al examination (bar examination), have completed an internship with a practic- ing lawyer, and be successfully interviewed by Legal Aid South Africa. They must also be members of the national bar and have a contractual relationship with Legal Aid South Africa. Paralegals must also undergo an interview with Legal Aid South Africa, with whom they must have a contractual relationship. While legal aid providers are not required by law to engage in continuing edu- cation or skills training, several such opportunities are continuously offered to them. Specialized training is nonetheless required to qualify for legal aid work with children. 168

169 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 No State recognition of paralegals yet, but the Association of Community-based Advice Offices of South Africa (ACAOSA) has commissioned the Legal Resource Centre to draft a regulatory framework and the first draft will be presented for consideration to Parliament in May 2016, with support from Legal Aid South Africa. Does any public revenue fund paralegals? Not at the national level, although Community Advice Offices (CAOs) where paralegals work do sometimes receive funding from certain government de- partments at the local and provincial levels. Can paralegals engage in litigation (with or without the help of lawyers)? By law, no; but in practice, yes. Currently, paralegals can be included in coop- eration agreements with Legal Aid South Africa. They are allowed to provide legal advice and general assistance in navigating the justice system in both criminal and civil cases. Are there boards that monitor community paralegals? Yes, CAOs have a board or management committee whose functions also include ensuring that community-based paralegals working at the CAO provide quality and responsible advice. 169

170 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Finances Primary legal aid services are available free of charge at the office of the pub- Costs to recipients lic defender or by other State-funded institutional legal aid providers. Civil society organisations also provide free legal advice to people who come to their offices, and Legal Aid South Africa provides free legal advice through a national toll-free Legal Aid Advice Line — a dedicated call centre service providing tele- phonic advice to clients. Beyond primary legal aid, other legal aid services are free of charge to those meeting eligibility criteria. The State covers all legal aid costs in civil cases. In criminal matters, when an applicant’s financial means exceeds the means test, a financial contribution can be levied. Legal aid applicants who find themselves on the borderline of affordability also have opportunities to get assistance, notably through a contribution scheme where a legal aid recipient can make a contribution towards legal costs in a way that is proportional to the applicant’s means. Legal aid in the annual justice budget $1.87 Legal aid budget per capita in 2013 16% The legal aid budget increased 88% by 16% from 2013 to 2015 Legal aid budget allocated criminal cases to Legal aid is a separate component of the annual justice budget. The budget for legal aid is determined by the parliament and Legal Aid South Africa, in close consultation with the bar association. The State provides separate funding to cover the cost of specialized legal aid 12% services provided to specific disadvantaged groups, as well as the cost of inde- pendent forensic experts. Legal aid budget allocated to civil cases 170

171 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa In criminal and civil cases, legal aid providers work full-time in institutions fund- Payments to legal ed by the State and have to submit reports on the hours they spend on a aid providers legal aid case. Legal Aid South Africa specifies set rates in both criminal and civ- il matters for defined categories of work. In criminal cases only, providers sign contracts with Legal Aid South Africa and receive payment for a set number of cases. Legal Aid South Africa is in charge of disbursing payment to legal aid providers. Provision of legal aid Who is eligible? Legal aid in criminal cases to persons arrested and detained on crim- available In criminal cases, legal aid is inal charges, persons charged with a criminal offence, persons imprisoned on criminal charges and victims of crime. The State is obliged to provide legal aid to persons who meet a financial thresh- old, children, persons with intellectual/mental disabilities, persons who face a potential prison sentence, and when the law notes that the interests of justice require it, in view of the case’s gravity or complexity. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a State agen- cy begins consideration of whether to impose pre-trial detention or restric- tive measures, or at least from the moment a law enforcement official restricts the suspect’s/defendant’s freedom. Legal aid services are also made available 50-70% during the trial. Criminal court cases (2013) It is not prohibited by law for the police to interview someone in the absence of a lawyer when the person is interviewed as a witness, but it is prohibited from the moment the person is officially suspected or accused. A person is nonethe- less free to agree to be interviewed without a lawyer. 6.8 The police sometimes questions a person without explaining his/her constitu- In 2013, the number of criminal tional right to a lawyer; statements made in such circumstances will however be cases filed in court was 6.8 times the number of civil cases excluded by the courts. 171

172 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa To what extent are legal aid services in criminal cases seen as effective? Independent national experts identify ‘hiring a private lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘availability of an indepen- dent expert testimony’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. Independent national experts are of the view that the quality of services provid- ed by legal aid lawyers, when compared with services provided by private law- yers, is more or less the same. However, legal aid providers are found to perform less well when it comes to conducting investigation to establish doubt about the suspect’s/defendant’s guilt even if the defendant may be guilty. 59% People who believe that the police How serious are the following problems in criminal courts always or often respects the basic in the city where you live? rights of suspects According to national experts, WJP Rule of Law Index 2015 WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons meeting a financial threshold, children, persons with intellectual/mental disabilities, refugees, and when the law notes that the interests of justice require it, in view of the case’s gravity or complexity. 172

173 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 30% Property issues Child custody issues Marital issues From respondents Contractual disputes Labor disputes For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- 70% fered to assist with the drafting or filing of a complaint or a response, to gain access to State services, to provide victims of violence with protective services, From complainants to conduct depositions or other official queries, and to negotiate between par- ties. Legal aid can also be provided throughout proceedings. Public interest litigation / class action cases: National experts estimate that there is public demand for public interest litiga- tion and class action cases to address discrimination, labour rights, consumer rights, environmental protection and health. State-funded legal aid is provid- ed for such initiatives. Furthermore, staff lawyers coordinate to uniformly chal- lenge common violations of national and international due process rights and human rights. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious 173

174 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa According to national experts, women often do not understand how legal aid Women’s access services can help them, or may not know where to find legal assistance. In addi- to legal aid services tion, some women prefer not to seek out legal assistance as they see court pro- cesses as too time-consuming, and therefore prefer to resolve issues through the informal justice system or outside the court system, where legal aid has no role. A lack of confidence in the quality of legal aid and lack of information on the ser- vices provided are other factors identified by national experts as impeding wom- en’s access to legal aid. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings, as well as court support services, such as interpretation and translation of documents. The justice system has specialized courts, judges, prosecutors and lawyers/para- Access to legal aid legals specifically dedicated to handling cases involving child victims (especially for children for cases of sexual abuses), child witnesses, and suspected or accused children. When representing children, legal aid providers often reach out to parents, so- cial workers and other childcare professionals for support to assist the child throughout proceedings. When comparing criminal cases where children are represented by legal aid providers specialized in children’s rights, and cases where children are repre- sented by non-specialized legal aid providers, independent national experts ob- serve that the use of imprisonment is less frequent when children are represent- ed by legal aid lawyers who are specialized in children’s rights. In criminal cases where legal aid is provided to children, legal aid lawyers are required by the legal framework and implement in practice a wide range of child-friendly actions, such as preventing disclosure of information about pend- ing charges to the child’s school, community or media; ensuring comfortable, child-friendly surroundings for any meetings with state justice officials; and en- suring that any child held in custody is separated from adult detainees. >75% >50% In more than 75% of cases where Cases where children are suspected a child was found culpable, an or charged with a criminal offence alternative to imprisonment was diverted from the formal justice imposed system without trial (e.g. through mediation, a warning, or an apology) 174

175 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Informal justice proceedings typically handle disputes related to marriage or Legal aid and informal family, child custody, land and property, inheritance, informal contracts and labor justice systems agreements, and minor criminal cases. According to national experts, people prefer to resolve disputes through informal justice mechanisms because they take less time, and informal tribunals are more conveniently located, especial- ly for those living in remote areas. Experts add thath people understand better how informal proceedings work, and they are more confident that they will lead to a negotiated outcome that is acceptable to all parties. Informal justice mechanisms allow for a lawyer to provide assistance in formal mediation and alternative dispute resolution processes, and there is a mecha- nism that allows cases to be referred between the formal and informal justice systems. Legal aid service providers can work across the different systems. Legal aid providers supporting informal justice proceedings require a law degree. To support formal mediation, legal aid providers also require a media- tion training certificate. To support customary or religious mediation, legal aid providers must have some basic training on legal matters, and they need to be reputable members of the community. 50% Disputes resolved through formal mediation or alternative dispute resolution processes 20-25% Disputes resolved through customary mediation or adjudication processes 175

176 Global Study on Legal Aid – Country Profiles South Africa Sub-Saharan Africa Quality safeguards Legal aid providers are obliged to adhere to specific quality and performance Accountability for standards and to ethical rules established by the bar association. the quality of legal aid services If a person has a right to legal aid, but no legal aid provider is available, or the provider is unprepared or unqualified, the proceedings must cease until a qual- ified legal aid provider arrives. If a party is denied access to legal aid, s/he has a right to appeal that decision; if a party is provided with poor representation, conviction may be set aside on appeal. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, due to lacking expertise in the law or skills required by the specific case, or due to incompatibility or conflict of inter- est with the legal aid recipient. In criminal cases, legal aid institutions aim to ensure that the same provider rep- resents the accused/suspect at all stages of the case. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring Legal Aid South Africa and a peer review team organised by the legal aid au- and data collection thority and/or the bar association. on the quality of legal aid services Data for monitoring the quality of legal aid services is collected through assess- ments by justice actors, through a review of complaints by legal aid recipients, through satisfaction surveys by legal aid recipients, and through the monitor- ing of services provided in court. In addition, Legal Aid South Africa has its own quality management and assessment programme. 176

177 Latin America & the Caribbean Argentina 178 Brazil 189 Dominican Republic 200 Ecuador 210 Guatemala 221 Haiti 231 Mexico 240 Paraguay 250

178 Argentina Latin America and the Caribbean Argentina 42.98 million Population Federal government system 98% 98% 92% 8% Male literacy rate Female literacy rate Rural population Urban population $13,480 0.982 Gender Development Index GNI per capita 0.95 $1,045 $4,126 $12,736 0.925 0.9 0.975 LOW MID/HIGH MID MID/HIGH MID/LOW MID/LOW HIGH LOW HIGH -15% 0.711 0.836 HDI Inequality-adjusted HDI Loss in HDI due to inequality 0.55 0.7 0.8 0.8 0.7 0.55 HIGH MID MID VERY HIGH LOW VERY HIGH LOW HIGH

179 Global Study on Legal Aid – Country Profiles Argentina Latin America and the Caribbean Legal Aid at a Glance in Argentina $17.22 Within the past 5 years 2010 Annual expenditure When was the last assessment Most recent reform of the legal on legal aid per capita in 2013 aid system in 2010 of legal aid needs conducted People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 3 A lot pay a debt, during the past 3 years Some 25 Citizen survey, WJP Rule of Law Index 2015 A Little 40 32 No Trust 32% 3 3 Sample size: 66 0% 100 % Priority areas for support Challenges in accessing legal aid Legislative drafting advice Limited number of lawyers outside urban areas h (and people living outside urban centres lack financial  Development of action plans/policies resources and time to travel to courts situated in urban areas) Development of quality criteria for legal aid providers Establishing paralegal systems h People lack awareness about where to find legal assistance  Institutional support  People may not know that legal aid services are available h Training  at little or no cost People may not understand how legal aid services can h help them 179

180 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal framework The right to legal aid was first recognized in 1886. Right to legal aid The National Constitution was reformed in 1994 and added a specific article The right to legal aid is guaranteed in: (120) which recognizes the Federal Public Defender’s Office ( Ministerio Público 2 The Constitution ) as an autonomous institution headed by the Federal Public de la Defensa 2 A separate law on legal aid Defender General. Law on judicial procedure 2 2 Law on the prosecution The latest substantial reform of the legal aid system took place over the past 2 Civil procedure code three years. The Federal Public Defender’s Office and the parliament played an 2 Administrative law 2 Law on pre-trial detention instrumental role in this reform. 2 Law on the penitentiary 2 Criminal procedure law State-funded legal aid is available at national, regional and local levels. 2 Implementing regulations for the law on legal aid Legal aid is mainly provided in the form of legal advice, legal representation and Services included legal assistance (before tribunals). Legal aid providers also provide general assis- as part of legal aid tance in navigating the justice system, and in executing legal documents. Specialized legal aid services are provided by the State for specific population groups, including persons with disabilities, children, women, the elderly, mi- grants, refugees, internally displaced persons, indigenous populations, ethnic or religious minorities, LGBTs, prisoners, victims of institutional violence and victims of human trafficking. Dedicated commissions have been established to facilitate the work of public defenders with vulnerable groups, such as the ‘commission on prisons’ and the ‘commission on gender issues’. Some pilot programmes have also been tested to enhance access to legal aid by disadvantaged population groups, such as a program aimed at providing legal aid to women in prison. Legal aid is provided upon request from the person who wants legal aid. The Process for obtaining court presiding over a case must also assess eligibility during the first appear- legal aid ance of the parties, but the determination is automatic if the case or legal aid re- cipient qualifies for legal aid services. 180

181 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean In criminal cases, no proof of eligibility is necessary as the State is obliged to pro- vide legal aid under the law. In civil cases, a person must prove eligibility by prov- ing that s/he meets a financial threshold or a set of ‘vulnerability’ criteria, such as being a member of a protected group (e.g. migrants, children, displaced per- sons, refugees, etc.). No proof is necessary in cases where the State is obliged to provide legal aid under the law. The State has carried out public information campaigns to raise awareness Awareness of the right about the right to legal aid and how to access legal aid services in 2014-15, to legal aid which provided the contact details of relevant offices. Independent national ex- perts estimate that the general population is ‘somewhat knowledgeable’ about legal aid services. Delivery model The Federal Public Defender’s Office has chief responsibility for the management of Legal aid authority legal aid. It assumes primary responsibility for designing and implementing policies aimed at facilitating access to legal aid by vulnerable groups. The Federal Public Defender’s Office also plays a pivotal role in assigning legal aid providers across the country. State-funded legal aid services for both criminal and civil cases are organised Organisation mainly through the Public Defender’s Office, the bar association and panel ap- of legal aid services pointments. Other non-governmental actors also provide legal aid services. The courts and the police have a roster of legal aid providers on duty for a given Mechanism for day, and call them in the given order. There are also legal aid providers on duty assigning legal aid in courts and police precincts. providers State-funded legal aid services are available in rural areas, but the quality of legal Accessing legal aid in services tends to be higher in urban areas. urban vs. rural areas 181

182 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Service providers Lawyers N/A N/A and other providers Licensed practicing Full-time /people legal aid lawyers /people lawyers Paralegals University-based law clinics Students mainly support the preparation of legal documents State-funded legal aid providers must have a law degree and be successfully in- Qualifications required terviewed by the Public Defender’s Office. Legal aid providers must also be in a contractual relationship with that Office. To be accepted as a staff member of the Public Defender’s Office, candidates must pass a very difficult test, which has both a written and an oral compo- nents. Lawyers who get the highest scores on this test must then be official- ly approved by the Senate. Non-staff members of the Public Defender’s Office must also pass a test. Legal aid providers need to undergo specialized training to qualify for the pro- vision of assistance to disadvantaged population groups. Paralegals have to comply with the same requirements as for lawyers, except that in terms of academic qualifications, they require a professional paralegal training course accredited by the State, Legal aid providers are required by law to engage in continuing education or skills training. Staff of the Public Defender are required to take a number of man- datory courses and are offered a range of voluntary courses; the State does allot funds to cover such training. 182

183 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 No. But while the legal profession (in Argentina as in most Latin American coun- tries) does not recognize or authorize community paralegals, many legal activ- ists, law students, unions and civil society organisations are engaged in legal aid activities, particularly in vulnerable urban areas where community leaders edu- cate communities about the law and help them organise for collective action. Under the law, only legal interns (enrolled in a law degree and supervised by a licensed attorney) are allowed to provide legal advice without holding a valid law degree. Does any public revenue fund paralegals? No. Since paralegals are not recognized by the State, no public funding is available. Can paralegals engage in litigation (with or without the help of lawyers)? No. Paralegals are only allowed to provide legal advice, legal information in po- lice precincts or prisons, and general assistance in navigating the justice system. Are there boards that monitor community paralegals? No, except that legal interns are monitored by their educational institutions. Finances Primary legal aid services are provided for free at the office of the Public Defender Costs to recipients or other State-funded institutions, through the bar association, which maintains a roster of qualified lawyers available to provide legal advice, and through oth- er non-state actors. Legal aid services are free of charge to those meeting eligibility criteria. Never- theless, it is required by law that convicted persons assisted by a public defend- er who have the financial means to cover legal aid fees should pay these fees, as determined by the court. These funds are in turn used in equal parts for the training of judges and judicial officials, and for replenishing the Special Fund of Social Assistance to suspects/defendants in need of legal aid. 183

184 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal aid in the annual justice budget $17.22 Legal aid budget per capita in 2013 Legal aid is a separate component of the annual justice budget. The national budget for legal aid is determined by the parliament and the Ministry of Justice. The Public Defender General submits a budget proposal to parliament every year. Separate funding is provided by the State for specialized legal aid services tar- 57% geted at disadvantaged populations. The State also covers the costs of addition- al services such as independent investigation, experts, psychological or social Annual legal aid budget increased by 57% from 2010 to 2013 work support, etc. Most of legal aid providers work full-time in public defender’s offices. Others Payments to legal work for private law firms that have a contractual agreement with the bar asso- aid providers ciation or the independent legal aid board. Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons arrested and detained on criminal Under the law, legal aid is charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime and witnesses. obliged to provide legal aid in all criminal cases where the accused The State is asks for legal assistance, regardless of the expected sentence. 184

185 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean At what stage of a criminal case? Under the law, legal aid should be provided from the moment a person is sus- pected or accused of a crime, and throughout the proceedings (it takes approxi- mately six hours for a lawyer to appear after notice is given that legal aid is need- ed in criminal cases). 20% It is prohibited by law for the police to interview someone in the absence of a lawyer, unless the person is interviewed as a witness. In rare occasions, it may In 2013, pre-trial detention was happen that the police determines the person to have a right to legal aid only imposed in close to 20% of criminal after the witness has incriminated him/herself. cases which received State-funded legal aid To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are just as likely as private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pretrial’, or ‘giving advice to the suspect/defen- dant in private before any contact with a state justice official’. Independent national experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘having a legal aid lawyer’, and ‘availability of an independent expert tes- timony’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 80% In 2013, approximately 80% of How serious are the following problems in criminal courts criminal court cases where State- in the city where you live? funded legal aid was provided According to national experts, WJP Rule of Law Index 2015 were resolved pursuant to a plea agreement, procedural agreement Excessive pre-trial detention or expedited trial Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 36% 3 3 Not very serious Very serious People who believe that the police always or often respects the basic rights of suspects WJP Rule of Law Index 2015 185

186 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Who is eligible? Legal aid in civil cases There is no specific requirement for being eligible to legal aid in civil cases; it is assigned by authorised agencies at their discretion, after the public defend- er has evaluated the vulnerability of the applicant (on the basis of a financial threshold, and whether the applicant is a minor, has an intellectual or mental disability, is a refugee, etc.). Eligibility also depends on the case’s gravity, com- plexity, or case type, as identified in the law. Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Property issues Marital and child Tort claims and custody issues administrative matters 50% From respondents Disputes with State agencies Labor disputes For what actions is a party eligible for legal aid? Under the law, primary legal aid is available to all. Legal aid is also provided to as- 50% sist with the drafting and filing of complaints and responses, and for any appeal or cassation (including to international tribunals). From complainants Public interest litigation / class action cases: State-funded legal aid is provided for public interest litigation and class action cases, and there is demand for legal aid to address health, environmental pro- tection, discrimination and prisoner issues. 186

187 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious According to national experts, women may find it difficult to confide in a (typi- Women’s access cally male) legal aid provider and to share intimate information related to a case. to legal aid services Furthermore, women may not be aware that legal aid services are available at lit- tle or no cost. They may prefer not to seek out legal assistance as they see court processes as too time-consuming, and legal aid providers as lacking gender sensitivity. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings; no other proof of eligibil- ity is required (e.g. financial threshold). Court support services, such as interpreta- tion and translation of documents, are also provided. The justice system has specialized courts and judges, specialized public defend- Access to legal aid ers and prosecutors, specialized police officers/units and specialized lawyers/ for children paralegals dedicated to handling cases involving child victims, child witnesses or suspected and accused children. National experts note that when representing children, legal aid providers rou- tinely reach out to parents and child protection practitioners for support to as- sist the child throughout proceedings. The legal framework does not require legal aid providers to explore diversion and alternative to imprisonment if the child is found culpable, but these actions are implemented in practice. 187

188 Argentina Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Informal justice proceedings handle marital or family disputes, child custody is- Legal aid and informal sues, land and property disputes, inheritance disputes, informal contracts and la- justice systems bor agreements, and minor criminal cases. According to national experts, people prefer to resolve disputes through infor- mal justice proceedings because informal tribunals are more conveniently lo- cated, and they are less time-consuming. Furthermore, experts explain that peo- ple are of the view that judges or decision-makers usually know the parties and therefore can better judge what is a just outcome acceptable to all parties. Lawyers and paralegals are allowed to provide legal assistance in formal media- tion and alternative dispute resolution processes, and in customary or religious mediation/adjudication processes. There is also a mechanism in place to allow 25% for the referral of cases between the formal and informal justice systems. Legal aid providers providing assistance to formal mediation must have a law degree. Disputes resolved through formal For customary or religious mediation/adjudication processes, legal aid provid- mediation or alternative dispute resolution processes (2013) ers must be a reputable member of the community. Quality safeguards Legal aid providers are obliged to adhere to ethical rules established by the bar Accountability for association. the quality of legal aid services If a person has a right to legal aid, but no legal aid provider is available, or the provider is unprepared or unqualified, the proceedings must cease until a qual- ified legal aid provider arrives — or they are deemed invalid. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, due to incompatibility or conflict of interest with the legal aid recipient. The Federal Public Defender’s Office is formally responsible for monitoring the Monitoring quality of legal aid services. Data is mainly collected through the review of com- and data collection plaints lodged by legal aid recipients. Every year, the Federal Public Defender’s on the quality Office presents before the parliament an report on its activities and achieve- of legal aid services ments over the previous year. Similarly, the Ombudsman delivers annual performance reports and qualitative reviews of the legal aid system, both in terms of its efficiency and accountabil- ity. The Ombudsman also formulates recommendations for improving the le- gal aid system. 188

189 Brazil Latin America and the Caribbean Brazil 206.1 million Population Federal government system 85% 92% 91% 15% Urban population Male literacy rate Female literacy rate Rural population $11,530 0.997 GNI per capita Gender Development Index 0.95 0.975 0.925 0.9 $1,045 $4,126 $12,736 HIGH LOW MID/LOW MID/HIGH MID MID/LOW LOW HIGH MID/HIGH -26.3% 0.557 0.755 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

190 Global Study on Legal Aid – Country Profiles Brazil Latin America and the Caribbean Legal Aid at a Glance in Brazil N/A 2015 2013 The most recent reform When was the last assessment Annual expenditure of the legal aid system of legal aid needs conducted on legal aid per capita in 2013 took place in 2013 Since 2004, four editions of diagnostic studies on Public Defenders Offices have been published by the Ministry of Justice, in partnership with UNDP, and in consultation with 2,673 public defenders and 24 chief public defenders from across the country. The most recent diagnostic was published in December 2015: www.anadep.org.br/wtksite/ downloads/iv-diagnostico-da-defensoria-publica-no-brasil.pdf People who received legal People’s trust in courts when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 7 pay a debt, during the past 3 years 35 Some Citizen survey, WJP Rule of Law Index 2015 A Little 35 No Trust 23 22% 3 3 Sample size: 63 100 % 0% Priority areas for support Challenges in accessing legal aid Legislative drafting advice The national legal aid budget is not sufficient to meet legal aid h needs across the country Development of action plans/policies  h People may not understand how legal aid services can help Development of quality criteria for legal aid providers Establishing paralegal systems them, or may not have confidence in the quality of legal services Institutional support People may not be aware that legal aid services are available at h Training  little or no cost  Establishing quality criteria for legal aid providers h Covering the cost of police, prosecutors and judges tends to be prioritized over spending public funds on lawyers  Creation of a National Council of Public Defender’s Offices 190

191 Global Study on Legal Aid – Country Profiles Brazil Latin America and the Caribbean Legal framework The right to legal aid was first recognized in the 1934 Federal Constitution. The le- Right to legal aid gal aid system underwent substantial reform in 2004, when Article 134 of the 1988 Federal Constitution was amended to grant administrative and financial autono- The right to legal aid is guaranteed in: my to the Offices of Public Defenders across the country. Additional powers were Constitution 2 granted to them in 2009, with respect to financial and human resources manage- A separate law on legal aid 2 Law on judicial procedure 2 ment. In 2013, Article 134 of the Federal Constitution was again amended to extend 2 Regulations addressing the mentioned autonomy to the Offices of the Federal Public Defenders and the State actors Federal District Public Defenders. Civil society and State Offices of Public Defenders played an instrumental role in introducing this reform. State-funded legal aid is available at federal and state levels, and include all courts of federal jurisdiction, such as the Federal Court, Labour Court, Electoral Court and Military Court. Pursuant to the Constitution, public defenders shall provide free legal assistance for Brazilians and foreigners, regardless of whether they live in Brazil. Any Brazilian seek- ing legal assistance, whether residing in Brazil or overseas, and foreigners, wheth- er residing in Brazil or not, have the right to be assisted by a public defender if they cannot afford a lawyer. According to Brazilian law, those who cannot afford a lawyer must be provided Services included with free legal assistance, which includes representation in court as well as edu- as part of legal aid cation on their rights and advice on how to proceed before and after legal obli- gations arise. Legal aid for both criminal and civil cases is mainly provided in the form of legal information, advice, assistance and representation. It is worth not- ing that State-funded legal aid is provided in appeals as well, including at the Superior Court of Justice. State-funded specialized legal aid services are provided to specific disadvan- taged population groups, such as persons with disabilities, children, women, the elderly, migrants, refugees, asylum seekers, internally displaced persons, stateless persons, indigenous populations, ethnic or religious minorities and the LGBT. Civil society organisations, who are ineligible to receive State funding, also pro- vide specialized legal aid services to several of these groups. Specialized training is not required to qualify for work with these disadvantaged population groups. According to the 1988 Federal Constitution, every individual, Brazilian or foreign- Process for obtaining er, who can prove that s/he cannot afford to pay for legal services, is entitled to legal aid free legal assistance provided by the State. 191

192 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean No proof of eligibility is required in criminal cases. According to Complementary Law No. 80/1994, the Offices of Public Defenders are essential to the jurisdic- tional function of the State. Their main duties, as an expression and instrument of the democratic regime, are the promotion of human rights and free-of-charge legal services, judicially and extra-judicially, to those individuals and groups who would otherwise not have access to justice. To prove eligibility to receive legal aid in civil/administrative cases, the applicant may be asked to show evidence of low income (if employed), and/or membership of a protected group. The State has carried out a public information campaign to raise awareness Awareness of the right about the right to legal aid and how to access legal aid services at least once in to legal aid 2014-15. Detailed information was provided on how to contact relevant service providers, and on services available, including for children. Independent nation- al experts estimate that the general population is ‘somewhat knowledgeable’ about the right to legal aid services. Delivery model The Federal Public Defender’s Office has the chief responsibility for the manage- Legal aid authority ment and administration of legal aid on a national level. It establishes the nation- al legal aid strategy and policy, oversees and coordinates the legal aid appoint- ment mechanism, and is responsible for advocating with the State for a sufficient budgetary allocation on legal aid. State Public Defenders' Offices and the Federal District Public Defenders' Offices have similar roles at state and district levels. Both criminal and civil legal aid services are provided through public defend- Organisation er’s offices, civil society organisations, and through pro bono schemes. Lawyers of legal aid services pro bono legal services as a means to practice and are encouraged to provide acquire experience; some private law firms have also made it a requirement. Additionally, for criminal cases, legal aid services are also provided through pan- el appointments ( ex officio , contract lawyers), with State-funded private practi- tioners working in parallel to lawyers from the public defender’s office. At both federal and regional levels, legal aid providers are assigned to crimi- Mechanism for nal cases by the public defender’s office, which assigns either a staff lawyer or a assigning legal aid private practitioner. Alternatively, the courts, prosecutors, police and other State providers agencies can contact legal aid providers directly in the order listed on a duty roster received from the legal aid administration. State-funded legal aid services are provided in both urban and rural areas. Accessing legal aid in urban vs. rural areas 192

193 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Service providers Lawyers 1/211 1/36,773 and other providers Full-time Licensed practicing /people legal aid lawyers /people lawyers Paralegals University-based Are not allowed to provide legal aid law clinics independently Students at university-based law clinics can provide the same primary legal aid services as lawyers. Each university sets its own guidelines on how Legal aid providers must have a law degree, be members of the national bar, and Qualifications required must show proof of passing a bar examination (a lawyer must undergo separate testing to become staff member of the institutional legal aid provider). In addi- tion, Article 26 of the Complementary Law 80/1994 provides that lawyers who intend to become public defenders must have at least three years of relevant professional experience. The legal aid administration requires that staff lawyers of the Public Defender’s Offices engage in continuing education or skills training, and the State allots funds to this effect. 193

194 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Finances At both federal and regional levels, legal aid services are free of charge to those Costs to recipients meeting eligibility criteria. Primary legal aid services are provided for free at the offices of the public defender. Free legal advice is also provided by the bar asso- ciation (which maintains a roster of qualified legal aid lawyers) and by civil soci- ety organisations. The legal aid budget is determined by the Parliament, in close consultation with Legal aid in the annual the legal aid administration. The State does not provide separate funding to justice budget cover the cost of specialized legal aid services. The State nonetheless covers the cost for independent forensic experts, psychological or social work support, as well as clerical assistance. All public defenders, both at federal and regional (state) levels, are paid by the Payments to legal Government (federal or regional) as full-time employees. At both federal and aid providers regional levels, most legal aid lawyers are full-time salaried employees of the le- gal aid administration. In criminal matters specifically, private legal aid providers who take up legal aid cases on a contractual basis with the legal aid administra- tion receive a fixed fee for each case. Provision of legal aid At what stage of a criminal case? Legal aid in criminal cases Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, or at least from the moment when charges are officially filed. It is also provided during trial, as well as for representation of prisoners in cases involving serious disciplinary charges, or when considering early release from prison. Legal aid providers specialize in representation at particular procedural stag- es of a case, and a new provider enters the case at each subsequent procedur- al stage. 194

195 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean There is no law prohibiting the police or other investigating agencies from in- terviewing a person in the absence of a lawyer. It may therefore happen that the police will question a person first as a witness, and will then determine that the person has a right to legal aid only after the witness has incriminated him/ herself. It takes approximately 24 hours for a legal aid provider to appear after notice is given that legal aid is needed in criminal cases. At both the federal and the re- gional levels, it is very common for pre-trial detention to be used, even when suspects have access to legal aid services. To what extent are legal aid services in criminal cases seen as effective? 21% People who believe that the police According to independent national experts, legal aid lawyers are less likely than always or often respects the basic private lawyers to perform certain actions, such as ‘giving advice to the suspect rights of suspects in private before any contact with a State justice official’, and ‘conducting inves- WJP Rule of Law Index 2015 tigations to establish doubt about the suspect’s guilt even if the defendant may be guilty’. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious 195

196 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Who is eligible? Legal aid in civil cases Legal aid in civil cases is provided to persons who meet a financial threshold. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Estimated demand for legal aid Labor disputes Child custody issues Marital issues services in civil cases Contactual disputes Claims for State services or disputes with State agencies 50% At what stages? From respondents In civil cases, beyond the provision of primary legal aid, legal aid is provided to assist with drafting or filing a complaint or a response; with gaining access to State services; with conducting depositions or other official queries; with inde- pendent investigation; with mediation, pre-trial hearings, trial and any appeal (including to international tribunals) or cassation; with drafting motions; and with the provision of protective services for victims of violence. 50% Public interest litigation: From complainants There is demand for legal aid to assist with public interest litigation related to discrimination, health, consumer rights, environmental protection and labour rights. However public defenders rarely coordinate to uniformly challenge com- mon violations of national and international due process rights and human rights. 196

197 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious According to independent national experts, there is little awareness in the female Women’s access population of the availability of legal aid services at little or no cost, and women to legal aid services may not know where to find legal assistance. Experts also note that women may lack confidence in the quality of legal aid services provided to them, and may not always understand how legal aid services can help them. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services and court support services, such as interpretation and translation of documents, in some legal proceedings only. There are specialized legal aid providers at both federal and state levels to han- Access to legal aid dle cases involving children in conflict with the law, child victims and child wit- for children nesses. When representing children, legal aid providers usually reach out to child support professionals to assist the child throughout proceedings. In criminal cases, diversion away from judicial proceedings is usually used. According to independent national experts, when children are represented by legal aid providers in criminal cases, alternatives to pre-trial detention and alternatives to imprisonment are used at the same rate as when children are represented by private lawyers. National experts observe that a higher rate is achieved when children are represented by legal aid providers who are special- ized in children’s rights. 197

198 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean National experts further note that while the legal framework stipulates several children-friendly measures in legal proceedings, those are not always adhered to in practice. For instance, legal aid providers sometimes fail to ensure that comfortable, child-friendly surroundings are provided for meetings with State justice officials; and they do not always prevent the child from giving statements to the police against his/her interests. There is high demand for assistance from special justice courts for small claims Legal aid and informal ) where conciliation is used as an alterna- ( juizados especiais de pequenas causas justice systems tive out-of-court dispute resolution instrument. A specific legislation on media- tion was adopted in 2015. While lawyers are allowed to provide legal assistance in mediation and alterna- tive dispute resolution processes, there is no mechanism that allow cases to be referred between the formal and the informal justice systems. 20% Disputes resolved through formal mediation or alternative dispute resolution processes (2013) Quality safeguards Legal aid providers are required to adhere to ethical rules established by the bar Accountability for association. the quality of legal aid services One legal aid case can have many lawyers representing the legal aid recipient sequentially at different stages of the proceedings. If a person has a right to legal aid, but no legal aid provider is available, or if a le- gal aid provider is unprepared or unqualified, a replacement legal aid provider is asked to represent the party. If a party is denied access to legal aid, in both crimi- nal and civil or administrative cases, the party has a right to appeal that decision. 198

199 Brazil Global Study on Legal Aid – Country Profiles Latin America and the Caribbean A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient if s/he has a conflict of interest with the legal aid recipient. An administrator from the legal aid administration is responsible for monitoring Monitoring the quality of legal aid services. Data is mainly collected through the review of and data collection complaints lodged by legal aid recipients. Some civil society organisations also on the quality monitor legal aid providers’ work. of legal aid services 199

200 Dominican Republic Latin America and the Caribbean Dominican Republic 10.41 million Population Unitary government system 78% 90% 91% 22% Male literacy rate Female literacy rate Urban population Rural population 0.995 $6,040 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW MID/LOW MID/LOW MID/HIGH MID LOW HIGH MID/HIGH -23.6% 0.546 0.715 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW MID HIGH VERY HIGH VERY HIGH MID HIGH

201 Global Study on Legal Aid – Country Profiles Dominican Republic Latin America and the Caribbean Legal Aid at a Glance in the Dominican Republic Never conducted 2004 $0.61 Legal aid system Annual expenditure When was the last assessment of legal aid needs conducted established in 2004 on legal aid per capita in 2013 People who received legal People’s trust in courts assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 4 pay a debt, during the past 3 years 18 Some Citizen survey, WJP Rule of Law Index 2015 18 A Little No Trust 60 30% 3 3 0% Sample size: 46 100 % Priority areas for support Challenges in accessing legal aid  Shortage of lawyers, especially outside urban areas h Legislative drafting advice  h Low pay for legal aid work Development of action plans/policies Covering the costs of police, prosecutors and judges is found h Development of quality criteria for legal aid providers  Establishing paralegal systems to be more important than spending state funds on lawyers  Institutional support Little support among the population for spending funds h to defend accused criminals Training  Little awareness about where to find legal assistance; people h may prefer to resolve issues through the informal justice system or outside the court system, where legal aid has no role 201

202 Dominican Republic Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal framework The right to legal aid for criminal matters was recognized in 2004, through the Right to legal aid adoption of law 277-04d/f which led to the creation of the Office of the Public Defender. The judiciary and international donors played an instrumental role in The right to legal aid is guaranteed in: this reform. Constitution 2 Separate law on legal aid 2 State-funded legal aid is available at national, regional and local levels. Law on judicial procedure 2 2 Criminal procedure law Implementing regulations 2 for the law on legal aid Legal aid is provided for criminal cases only, in the form of legal advice, legal rep- Services included resentation and legal assistance (before tribunals). Legal aid providers also pro- as part of legal aid vide general assistance in navigating the justice system, and in executing legal documents. Specialized legal aid services are provided by the State for specific population groups, including persons who meet a financial threshold, children, women, per- sons with disability, the elderly, migrants, LGBT and prisoners. Legal aid is provided upon request from the person who wants legal aid, or Process for obtaining upon request from the police or the prosecutor. The court presiding over a case legal aid must also assess eligibility during the first appearance of the parties. To receive legal aid, a person must prove eligibility by providing supportive doc- umentation (proving status as recipient of welfare or as a member of a pro- tected group, demonstrating family hardship, etc.) Proof that the legal aid ap- plicant’s claim has merit (and/or a letter of divestment from the private lawyer who was handling the case) is sometimes necessary. The Office of the Public Defender periodically carries out public information Awareness of the right campaigns to raise awareness about the right to legal aid and how to access le- to legal aid gal aid services, mainly by holding information sessions with civil society organ- isations. Independent national experts estimate that the general population is ‘somewhat knowledgeable’ about legal aid services. 202

203 Dominican Republic Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Delivery model The Office of the Public Defender has chief responsibility for the administration of Legal aid authority legal aid. Legal aid services in criminal cases are provided through public defender in- Organisation stitutions. In addition, the National Office for Legal Representation of a Victim's of legal aid services Rights (RELEVIC) was established as a dedicated service offered by the Office of the Attorney General. RELEVIC aims to provide free legal aid services to victims of crime who lack the financial resources to hire a lawyer. A National Council for Public Defence has been created to manage the provi- sion of legal aid services, and meets at least once every three or four months. The Council is constituted by the President of the Supreme Court, the nation- al director of the Public Defender’s Office, as well representatives from the de- partmental coordinators, public defenders, the bar association, the deans of law faculties and directors of law schools, and NGOs. Legal aid providers are assigned by a ‘coordinator of public defence’, who man- Mechanism for ages public defenders’ offices in the provinces. assigning legal aid providers State-funded legal aid services are available in rural areas. Accessing legal aid in urban vs. rural areas 203

204 Dominican Republic Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Service providers Lawyers 1/177 1/45,841 and other providers Full-time Licensed practicing /people lawyers legal aid lawyers /people 1/142,603 University-based /people Paralegals law clinics Students are allowed to provide primary But paralegals are not officially recognized legal aid and to prepare legal documents as legal aid providers Legal aid providers must have a law degree and must have completed an ap- Qualifications required prenticeship or internship with a practicing lawyer, judge or other State justice agency. They must also be in a contractual relationship with the Public Defender. To become a staff member of the Public Defender, lawyers need to undergo in- tensive training at the National Judicial College, as well as separate testing and interviews. Paralegals must have completed a professional paralegal training course accredited by the State. Legal aid providers are required by law to engage in continuing education or skills training, and the State does allot funds to this effect. 204

205 Global Study on Legal Aid – Country Profiles Dominican Republic Latin America and the Caribbean Finances Legal aid services for criminal cases are free of charge for those meeting eligibil- Costs to recipients ity criteria. Primary legal aid services are provided for free at the Office of Public Defender. Legal aid in the annual justice budget $0.61 Legal aid budget per capita in 2013 21% Annual legal aid budget increased by 21% from 2010 to 2013 Legal aid is a separate component of the annual justice budget. The national budget for legal aid is determined by the parliament, in close consultation with the Public Defender’s Office. Specialized legal aid services for disadvantaged populations are funded by the State. The majority of legal aid providers work full-time in public defender’s offices. Payments to legal aid providers 205

206 Dominican Republic Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. The State is to provide legal aid when the law notes obliged that the interests of justice require it. The specific type of legal aid provided de- pends on the case’s gravity, complexity, or case type, as identified in the law. In particular, the State must provide legal aid to persons who are unable to hire the services of a lawyer for lack of financial means, children, persons with phys- ical, intellectual and mental disabilities, persons whose mother tongue is not the language of official proceedings, and persons who potentially face a pris- on sentence. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, or at least from 70% the moment charges are officially filed (it takes approximately one hour for a In 2013, State-funded legal aid lawyer to appear after notice is given that legal aid is needed in criminal cases). was provided in 70% of all criminal Legal aid is also provided during trial, for any appeal or cassation, and for consid- cases filed in court eration of probation, or social rehabilitation/reintegration matters after release from prison. It is prohibited by law for the police to interview someone in the absence of a lawyer. In practice, however, the police sometimes begins to question a witness before the arrival of the lawyer, which can be problematic when the police de- termines the person to have a right to legal aid only after the witness has incrim- inated him/herself. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely than private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/de- fendant in private before any contact with a state justice official’. 48% Independent national experts identify ‘the judge’s objective analysis of evidence and testimony’, ‘a well prepared and/or highly skilled lawyer’ and ‘having a legal People who believe that the police aid lawyer' to be amongst the most influential factors in reaching a dismissal of always or often respects the basic rights of suspects charges or acquittal in criminal cases. WJP Rule of Law Index 2015 206

207 Dominican Republic Global Study on Legal Aid – Country Profiles Latin America and the Caribbean How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Legal aid is not provided in civil cases. Legal aid in civil cases How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious 207

208 Dominican Republic Global Study on Legal Aid – Country Profiles Latin America and the Caribbean National experts note that the absence of adequate specialized legal aid services Women’s access for women is a major obstacle faced by women. They also observe that legal aid to legal aid services provided for family and civil matters, or for cases of gender-based violence, is very limited and of poor quality. Female victims of violence (including victims of sexual and gender-based vio- lence) can receive legal assistance through the Attorney General’s Office or the Ministry for Women. The legal aid assistance provided by these offices, however, is not sufficient to respond to the high demand for such services, nor to offer suit- able follow-up to victims. The justice system has specialized public defender’s offices, courts, judges, law- Access to legal aid yers, prosecutors and police specifically dedicated to handling cases involving for children child victims, child witnesses or suspected and accused children. When representing children, legal aid providers routinely reach out to parents, social workers and medical and/or mental health professionals for support to assist the child throughout proceedings. According to national experts, when children are represented by legal aid pro- viders in criminal cases, diversion away from judicial proceedings, as well as al- ternatives to pre-trial detention and to imprisonment, are more often achieved than in cases where children are represented by private lawyers, or by lawyers who are not specialized in children’s rights, or not represented at all. Informal justice proceedings handle mainly child custody issues and minor Legal aid and informal criminal cases. Informal justice mechanisms do not allow for the provision of le- justice systems gal assistance by a lawyer or paralegal. 208

209 Global Study on Legal Aid – Country Profiles Dominican Republic Latin America and the Caribbean Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a qualified legal aid provider arrives. the quality of legal aid services A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he doesn’t have the nec- essary expertise. The maximum caseload per lawyer at any given time is 300 (at the national level). Formal responsibility for monitoring the quality of legal aid services rests with Monitoring a peer review team established by the legal aid authority or bar association, as and data collection well as with a government entity called “Control of Services, and Departmental on the quality and District Coordinators”. of legal aid services There are considerable shortages of data in the justice system. For instance, data about children is not recorded separately, and no data is available on case reso- lution prior to a cases’s transfer to court. 209

210 Ecuador Latin America and the Caribbean Ecuador 15.90 million Population Unitary government system 64% 94% 92% 36% Male literacy rate Female literacy rate Urban population Rural population 0.971 $6,090 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW MID/LOW MID/LOW MID/HIGH MID LOW HIGH MID/HIGH -22.1% 0.570 0.732 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

211 Global Study on Legal Aid – Country Profiles Ecuador Latin America and the Caribbean Legal Aid at a Glance in Ecuador $1.78 Never conducted 2012 Annual expenditure When was the last assessment Most recent reform of the legal on legal aid per capita in 2013 of legal aid needs conducted aid system took place in 2012 People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 6 pay a debt, during the past 3 years 28 Some Citizen survey, WJP Rule of Law Index 2015 44 A Little No Trust 21 24% 3 3 Sample size: 63 100 % 0% Challenges in accessing legal aid Priority areas for support Legislative drafting advice Particularly acute shortage of lawyers outside urban areas h Development of action plans/policies h The bar association is opposed to allowing paralegals to fill the gap of available lawyers Development of quality criteria for legal aid providers General perception that it is more important to cover the cost h Establishing paralegal systems Institutional support of police, prosecutors and judges than to spend state funds on Training lawyers Establishing quality criteria for legal aid providers  Little support among the population for spending public funds h  Institutional support from on-site experts providing advice to defend accused criminals h on the management of the legal aid system in ‘real time’ People may not be aware that legal aid services are available at  Training based on case studies little or no cost, may not know where to find legal assistance, and may not have confidence in the quality of legal services. 211

212 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal framework The right to legal aid was recognized by law in 1998. The latest substantial Right to legal aid reform of the legal aid system took place in 2012, with strong involvement by the courts, public defenders, civil society organisations and the parliament. The right to legal aid is guaranteed in: Constitution 2 State-funded legal aid is available at national level. 2 Law on judicial procedure 2 Law on police Law on the judiciary 2 Law on the prosecution 2 Civil procedure code 2 2 Administrative law Law on pre-trial detention 2 2 Law on the penitentiary 2 Criminal procedure law 2 Regulations addressing State actors 2 Implementing regulations for the law on legal aid 2 Instructions and guidelines issued by the General Public De- fender on the prevision of legal aid services Legal aid is mainly provided in the form of legal advice, legal representation and Services included legal assistance (before tribunals). Legal aid providers also provide general assis- as part of legal aid tance in navigating the justice system, and in executing legal documents. Specialized legal aid services are provided by the State for specific population groups, including children, women, victims of domestic violence, persons with disability, the elderly and migrants, refugees, asylum seekers and stateless per- sons. Civil society organisations also provide specialized legal aid services for women, migrants, refugees and asylum seekers, and the LGBT community. Legal aid is provided upon request from the person who wants legal aid, or Process for obtaining from the prosecutor. The court presiding over a case must also assess eligibility legal aid during the first appearance of the parties. In criminal cases, the determination is automatic if the case or legal aid recipient qualifies for legal aid services under the law, in which case no proof is necessary. In civil cases, a person must prove eligibility by providing supportive documentation (e.g. proving status as recip- ient of welfare or as member of a protected group, demonstrating family hard- ship, etc.) 212

213 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean The State has carried out public information campaigns to raise awareness Awareness of the right about the right to legal aid and how to access legal aid services at least once in to legal aid 2014-15. Detailed information was provided on how to contact relevant service providers, and on services available, including for children. Independent nation- al experts estimate that the general population is ‘somewhat knowledgeable’ about the right to legal aid services. Delivery model A legal aid administration independent from the judiciary, the Public Defender, has Legal aid authority chief responsibility for the management of legal aid. Legal aid services are provided through public defender institutions, mediation Organisation Mecanismo Alternativos a la Solución de Conflictos, or MASC ) and civil so- centers ( of legal aid services ciety organisations. There are legal aid providers on duty in courts and police precincts. Mechanism for assigning legal aid providers State-funded legal aid services are provided in rural areas through ‘Mobile Accessing legal aid in Defence’, i.e. public defenders commuting between urban and rural areas. The urban vs. rural areas quality of legal services however tends to be higher in urban areas. 213

214 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Service providers Lawyers 1/21,036 N/A and other providers Licensed practicing Full-time /people legal aid lawyers /people lawyers N/A Paralegals University-based law clinics Students can represent people in civil Are not officially recognized as providers cases and can provide primary legal aid of legal aid State-funded legal aid providers must have a law degree and show proof of Qualifications required passing a professional examination, be interviewed, and if selected, enter in a contractual relationship with the agency that oversees the administration of legal aid. They must be registered in a State-authorised roster of legal aid pro- viders or as a member of the Judiciary Council (lawyers forum). Paralegals must complete a professional training course accredited by the State. Legal aid providers are required by law to engage in continuing education or skills training, which is provided by the Judicial Academy for justice personnel; the State does allot funds to this effect. 214

215 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Finances Legal aid services are free of charge for those meeting eligibility criteria; in crim- Costs to recipients inal cases, all costs are covered. Primary legal aid services are provided for free at the offices of the public defender. Some civil society organisations and certi- fied legal aid clinics in law schools also provide primary legal aid services for free. Legal aid in the annual justice budget $1.78 Legal aid budget per capita in 2013 Legal aid is a separate component of the annual justice budget. The budget for legal aid is determined by the parliament and the public defender. The State 690% covers both specialized legal aid services for disadvantaged populations and additional services such as independent investigation, experts, psychological or Annual legal aid budget increased by 690% from 2010 to 2013 social work support, etc. For both criminal and civil cases, legal aid lawyers are full-time salaried employ- Payments to legal ees in institutions funded by the State. For criminal cases, some legal aid provid- aid providers ers are paid a fixed fee per case. Junior lawyers are also encouraged to provide services as a means to acquire experience. pro bono Provision of legal aid Who is eligible? Legal aid in criminal cases to persons arrested and detained on criminal Under the law, legal aid is available charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, and victims of crime. 215

216 Global Study on Legal Aid – Country Profiles Ecuador Latin America and the Caribbean obliged The State is to provide provide legal aid to all persons undergoing crim- inal prosecution; in civil cases, legal aid is automatically provided when the law notes that the interests of justice require it. Additionally, the State is obliged to provide legal aid to children, persons with physical, intellectual and mental 25- disabilities, internally displaced persons and refugees, persons whose mother tongue is not the language of official proceedings, and persons who potential- ly face a prison sentence. 50% At what stage of a criminal case? Proportion of criminal court cases (2013) Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom (but accord- ing to national experts, this is seldom the case in practice), or at least from the moment charges are officially filed (it usually takes approximately one hour for a legal aid provider to appear after notice is given that legal aid is needed in a criminal case.) Legal aid is provided during trial, for any appeal or cassation, for representation of prisoners in cases involving serious disciplinary charges, and for consideration of probation, or social rehabilitation/reintegration matters af- 26% ter release from prison. In criminal cases, legal aid institutions aim to ensure that the same provider rep- Proportion of criminal cases for which legal aid was provided (2013) resents the accused/suspect at all stages of the case. It is prohibited for the po- lice to interview someone in the absence of a lawyer. However, if it takes too long, the questioning often begins even if the legal aid provider has not arrived. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely than private lawyers to perform certain actions, such as ‘advocating for a sus- pect’s/defendant’s release pre-trial’, and less likely to perform other actions, such as ‘advocating for alternative resolution of cases where defendants are minors’. 55% Furthermore, experts identify ‘bribery/corruption’, ‘having a legal aid lawyer’, ‘the judge’s objective analysis of evidence and testimony’, and ‘availability of an inde- People who believe that the police pendent expert testimony’ to be amongst the most influential factors in reach- always or often respects the basic ing a dismissal of charges or acquittal in criminal cases. rights of suspects WJP Rule of Law Index 2015 Resolved pursuant to Acquitted after trial Pre-trial detention a plea agreement or (2013) imposed (2013) expedited trial (2013) Criminal cases which received legal aid 22% 0.1% 18% 216

217 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available when the law notes that the interests of justice require it. In particular, it is provided to persons who meet a financial threshold Estimated demand for legal aid (US$700 in annual income), children, persons with physical, intellectual or men- services in civil cases tal disabilities, refugees, and persons whose mother tongue is different from the language used in official proceedings. 5 types of civil cases for which legal aid services are most 35% commonly sought and for which State-funded legal aid is available From respondents Labor disputes Child custody issues Assistance with informal/ traditional justice proceedings 65% From complainants Administrative matters Mediation 217

218 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean For what actions is a party eligible for legal aid? Under the law, primary legal aid is available to all. Legal aid is provided to assist with the drafting and filing of complaints and responses and with conducting depositions or other official queries. Legal aid is also made available for the pro- vision of protective services for victims of violence, for mediation between par- ties, and throughout the proceedings, from pre-trial hearings to any appeal (in- cluding appeals to international tribunals) or cassation. Public interest litigation / class action cases: State-funded legal aid is provided for public interest litigation and class action cases, and demand for legal aid is particularly high for class action cases address- ing discrimination, labour rights, environmental protection, health cases, and in- digenous peoples rights. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious According to national experts, women lack awareness about the availability of Women’s access legal aid services at little or no cost, and they may not know where to find legal to legal aid services assistance. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings; court support services, such as interpretation and translation of documents, are only provided in some proceedings. 218

219 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean The justice system has a specialized Public Defender, as well as specialized courts Access to legal aid and judges, specialized police officers/units, and specialized prosecutors, to rep- for children resent child victims, child witnesses or suspected and accused children. According to national experts, when representing children, legal aid providers routinely reach out to parents to assist the child throughout proceedings. In criminal cases, experts estimate that diversion away from judicial proceed- ings is more often achieved when children are represented by legal aid provid- ers than in cases where they are represented by private lawyers or not repre- <10% sented at all. In 2013, an alternative to imprisonment was imposed in less than 10% of cases where a child was found culpable, when state- funded legal aid was provided. Informal justice proceedings typically handle marital or family disputes, child Legal aid and informal custody issues, land and property disputes, inheritance disputes, and informal justice systems contracts and labor agreements. National experts explain that people prefer to resolve disputes through the in- formal justice systems because they take less time and lead to negotiated out- comes that are acceptable to all parties. Lawyers and paralegals are allowed to provide legal assistance in formal media- tion and alternative dispute resolution processes. A mechanism, is in place to fa- cilitate referrals between the formal and informal justice systems. 20% To provide assistance in informal justice processes, legal aid providers must at Disputes resolved through formal minimum have obtained certification in mediation and/or arbitration. mediation or alternative dispute resolution processes (2013) 219

220 Ecuador Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Quality safeguards If a party is denied access to legal aid, there is a right to appeal that decision in Accountability for both criminal and civil cases. If a person has a right to legal aid, but no legal aid the quality of legal provider is available, or the provider is unprepared or unqualified, the proceed- aid services ings must cease until a qualified legal aid provider arrives (this only applies to criminal cases). A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he lacks expertise in the law or skills required by the specific case. The judiciary, the national statistical office and a dedicated governmental de- Monitoring partment on ‘quality management’ are formally responsible for monitoring the and data collection quality of legal aid services. The country nonetheless continues to face consider- on the quality able data challenges (e.g. data about children is not recorded separately.) of legal aid services In order to monitor the quality of legal aid services, data is collected through the review of complaints lodged by legal aid recipients, and through satisfac- tion surveys filled by legal aid recipients. The services provided in court are also monitored. 220

221 Guatemala Latin America and the Caribbean Guatemala 16.02 million Population Unitary government system 51% 83% 72% 49% Male literacy rate Female literacy rate Urban population Rural population 0.949 $3,430 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW LOW MID/LOW MID/HIGH MID/HIGH HIGH MID MID/LOW -29.4% 0.443 0.627 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW HIGH LOW MID HIGH VERY HIGH VERY HIGH MID

222 Global Study on Legal Aid – Country Profiles Guatemala Latin America and the Caribbean Legal Aid at a Glance in Guatemala N/A 2010 N/A Most recent reform of the legal When was the last assessment Annual expenditure aid system in 2010 on legal aid per capita in 2013 of legal aid needs conducted People who received legal People’s trust in courts when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 6 pay a debt, during the past 3 years Some 18 Citizen survey, WJP Rule of Law Index 2015 A Little 42 34 No Trust 37% 3 3 100 % 0% Sample size: 38 Priority areas for support Challenges in accessing legal aid h There is little support among the population for spending Legislative drafting advice public funds to defend accused criminals  Development of action plans/policies There is sometimes a language barrier between legal aid h Development of quality criteria for legal aid providers Establishing paralegal systems  providers and those who need legal aid Training  h People are generally under the impression that legal aid  Establishing quality criteria for legal aid providers lawyers are more loyal to State agencies than to legal aid recipients Institutional support — especially to expand the provision  of legal aid services beyond criminal cases to civil cases h People may not know where to find legal assistance: legal aid is geographically difficult to access and there is a particularly in response to an increasing demand for legal aid to help acute shortage of lawyers outside urban areas resolve labor disputes, address issues faced by women and h Low pay of lawyers for legal aid work children, and uphold land rights for indigenous peoples 222

223 Guatemala Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal framework The right to legal aid was first recognized in 1997 through Decree 129-97, Law Right to legal aid on Public Criminal Defense Service (Ley del Servicio Público de Defensa Penal), which entered into force on 13 July 1998, and most recently reformed in 2010. The right to legal aid is guaranteed in: The Institute of Public Criminal Defence played an instrumental role in the es- Constitution 2 tablishment of the legal aid system. State-funded legal aid is available at the na- 2 Separate law on legal aid Law on judicial procedure 2 tional level. Law on police 2 Law on the judiciary 2 Law on the prosecution 2 Civil procedure code 2 2 Administrative law Criminal procedure law 2 Regulations addressing State actors 2 2 Law on the Institute of Criminal Public Defence In criminal cases, legal aid lawyers provide legal information in police precincts, Services included in prisons and in communities, and assist with the execution of legal docu- as part of legal aid ments. In civil cases, legal aid lawyers only provide legal advice and general as- sistance in navigating the justice system, in addition to also assisting with the execution of legal documents. Specialized legal aid services are provided by the State for any specific popu- lation group which needs assistance, such as ethnic minorities, the elderly, or migrants. Legal aid is provided upon request from the person who wants legal aid, or Process for obtaining from their relatives, the police, prosecutor , judges, the Public Ministry (Ministerio legal aid Público) or legal aid provider. The court presiding over a case must also assess eligibility during the first appearance of the parties. To receive legal aid, a person must prove eligibility by providing supportive doc- umentation demonstrating family hardship or evidence of low income. The last public information campaign carried out by the State to raise aware- Awareness of the right ness about the right to legal aid was held three years ago, and provided peo- to legal aid ple specific contact details of offices to contact to seek legal aid, in addition to general information about legal aid services. Independent national experts esti- mate that the general population is ‘somewhat knowledgeable’ about legal aid services. 223

224 Guatemala Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Delivery model The Institute of Public Criminal Defense (Instituto de la Defensa Pública Penal) ad- Legal aid authority ministers criminal legal aid. In civil cases, 'Bufetes Populares' (legal institutions at- Universidad de San Carlos de Guatemala and other universities) play an tached to important role in the provision of legal aid services. In criminal matters, legal aid services are provided through the Institute of Organisation Public Criminal Defense and non-governmental organisations. In civil matters, of legal aid services non-governmental organisations and 'Bufetes Populares' of universities are the providers of legal assistance. The Institute of Public Criminal Defense maintains a roster of legal aid providers, Mechanism for and State agencies contact the Institute to request their services. Additionally, assigning legal aid there are legal aid providers on duty in courts and police precincts. providers The quality of legal services tends to be higher in urban areas. Availability of Accessing legal aid in state-funded legal aid services are more limited in rural areas, where they can be urban vs. rural areas found mainly in provincial towns. The Institute of Public Criminal Defense has 36 offices nationwide (22 depart- mental, 14 municipal and 15 indigenous defence offices), through which it pro- vides free legal aid services for people with limited financial resources when they are subject to criminal proceedings and a Public Defender is requested to assist them. 224

225 Guatemala Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Service providers Lawyers N/A N/A and other providers Licensed practicing Full-time /people /people legal aid lawyers lawyers University-based Paralegals In both civil and criminal cases, paralegals law clinics are allowed to provide legal advice on a one-time or two-time basis. In criminal cases, they also provide legal information in police precincts or prisons. Public defenders must have a law degree, and must have completed an ap- Qualifications required prenticeship with a judge or any other judicial institution of the State. The Public Defender’s Office organises trainings for staff lawyers and paralegals. Public defenders are not required by law to engage in continuing education or skills training, and the State does not allot funds to this effect. 225

226 Guatemala Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Finances Legal aid services for criminal cases are free of charge for those meeting eligi- Costs to recipients bility criteria. Primary legal aid services are provided for free by the Institute of Public Criminal Defense, and at the offices of civil society organisations. If it is lat- er verified that the beneficiary did not meet the eligibility criteria (i.e. had the fi- nancial resources to afford legal services), he or she must reimburse the Institute the fees and procedural costs that were incurred. The national budget for legal aid is determined by the parliament, in close con- Legal aid in the annual sultation with the Institute of Public Criminal Defense. justice budget In criminal cases, some legal aid providers work full-time in institutions funded Payments to legal by the State, and others are paid on an hourly basis for actions that the State has aid providers identified as a basis of payment. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to anyone who requires assistance with a criminal case, and who does not have the financial means to afford it. The State is obliged to provide legal aid to anyone who is financially unable to secure the legal assistance s/he needs. At what stage of a criminal case? Under the law, legal aid should be provided at any stage of criminal proceed- ings, whenever there is a need for assistance. In criminal cases, due to budget constraints, it is difficult for a public defender as- signed to a case to be present at all hearings for all of his or her clients. However, if the case is appealed, it is transferred to the Appeals Unit within the Institute of Public Criminal Defense. It is prohibited by law for the police to interview 226

227 Global Study on Legal Aid – Country Profiles Guatemala Latin America and the Caribbean someone in the absence of a lawyer. In practice, however, when it takes too long for the legal aid provider to arrive, the police sometimes begins to question the person before the arrival of the lawyer. To what extent are legal aid services in criminal cases seen as effective? 1.3% Independent national experts estimate that legal aid lawyers are more likely Criminal cases which were acquitted after trial (2013) than private lawyers to perform actions such as ‘challenging the reliability of ev- idence against the suspect/defendant’, and ‘challenging the credibility of wit- nesses’. Meanwhile, experts find that legal aid lawyers are less likely than private lawyers to perform actions such as ‘presenting arguments in favour of a sus- pect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/defendant in private before any contact with a state justice official’. 6.6% Criminal cases which had pre-trial Independent national experts identify ‘a well prepared and/or highly skilled law- detention imposed (2013) yer’, ‘a poorly prepared prosecutor’, ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 0.6% How serious are the following problems in criminal courts Proportion of criminal cases which in the city where you live? were resolved pursuant to a plea According to national experts, WJP Rule of Law Index 2015 agreement, procedural agreement or expedited trial (2013) Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 53% 3 3 People who believe that the police Not very serious Very serious always or often respects the basic rights of suspects WJP Rule of Law Index 2015 227

228 Guatemala Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Who is eligible? Legal aid in civil cases State-funded legal aid is not systematically provided for civil cases. Estimated demand for legal aid 3 types of civil cases for which legal aid services are most services in civil cases commonly sought and for which State-funded legal aid is available Child custody issues Labor disputes Marital disputes 50% For what actions is a party eligible for legal aid? From respondents In civil cases, a party is only eligible for primary legal aid and for assistance in drafting a complaint. Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class ac- 50% tion cases, but there is an increasing demand for legal aid to address health is- sues, labour rights, consumer rights, discrimination and environmental protec- From complainants tion — particularly in regards to land rights for indigenous peoples. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious 228

229 Guatemala Global Study on Legal Aid – Country Profiles Latin America and the Caribbean According to national experts, women tend to prefer not to seek out legal as- Women’s access sistance or take disputes to court as they perceive court processes to be biased to legal aid services against women, and they often see legal aid providers as lacking gender sensitivi- ty. Experts further note that women, more often than men, may not know where to find legal assistance, and may not understand how legal aid services can help them. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in some legal proceedings only. Likewise, court support services, such as interpretation and translation of documents, are provid- ed only in some proceedings. The justice system does not have specialized legal aid providers specifically ded- Access to legal aid icated to handling cases involving child victims, child witnesses or suspected for children and accused children. National experts note that when representing children, legal aid providers rou- tinely reach out to parents and psychologists for support to assist the child throughout proceedings. According to experts, when children are represented by legal aid providers (in- cluding by lawyers specialized in children’s rights), alternatives to pre-trial deten- tion and to imprisonment are less often achieved than in cases where children are represented by private lawyers. With respect to diversion away from formal justice system without trial (e.g. through mediation, a warning, or an apology), experts say that there is no noticeable difference between the performance of legal aid providers and private lawyers. 10-20% In 10-20% of cases when children are suspected or charged with a criminal offence, the case is diverted from the formal justice system without trial (through mediation, a warning or an apology) (2013) > 75% >75% When State-funded legal aid was In 2013, in more than 75% of cases where a child was found culpable, provided, the proportion was still 75% an alternative to imprisonment was imposed 229

230 Guatemala Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Informal justice proceedings mainly handle marital or family disputes, land Legal aid and informal and property disputes, and disputes related to informal contracts and labor justice systems agreements. National experts explain that people prefer to resolve disputes through informal justice proceedings because they find them less time-consuming. Additionally, experts observe that people trust that the judges or decision-makers, because they know the parties, can better judge what is a just outcome acceptable to all parties. Lawyers and paralegals are allowed to provide legal assistance in both formal mediation/alternative dispute resolution processes and in customary or reli- gious mediation and adjudication processes. There is a mechanism in place to allow for the referral of cases between the formal and informal justice systems. To provide assistance in formal mediation and alternative dispute resolution processes, legal aid providers must have a law degree. Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a quali- the quality of legal fied legal aid provider arrives. This provision is sometimes difficult to implement aid services however, as there is no formal means of assessing whether a legal aid provider is unprepared or unqualified. A ‘peer review team’ established by the legal aid board is formally responsible for Monitoring monitoring the quality of legal aid services. Data is collected through satisfac- and data collection tion surveys of legal aid recipients, and through internal monitoring of institu- on the quality tional providers of legal aid services (e.g. random courtroom visits to assess the of legal aid services performance of public defenders) There is an acute shortage of data in the justice system. For instance, no data is available on the number of lawyers and paralegals in the country, on criminal or civil cases filed in court where State-funded legal was provided. Data about chil- dren is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 230

231 Haiti Latin America and the Caribbean Haiti 10.57 million Population Unitary government system 47% 53% 45% 43% Male literacy rate Female literacy rate Urban population Rural population N/A $820 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW MID/LOW MID/LOW MID/HIGH MID HIGH MID/HIGH LOW -38.8% 0.296 0.483 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.7 0.55 0.8 0.8 0.55 0.7 HIGH LOW MID HIGH VERY HIGH MID LOW VERY HIGH

232 Global Study on Legal Aid – Country Profiles Haiti Latin America and the Caribbean Legal Aid at a Glance in Haiti Currently conducted N/A 1989 Most recent reform of the legal Annual expenditure When was the last assessment aid system in 1989 of legal aid needs conducted on legal aid per capita in 2013 Priority areas for support Challenges in accessing legal aid The legal aid system faces considerable operational h Legislative drafting advice  deficiencies  Development of action plans/policies Legal aid is geographically difficult to access, and people often Development of quality criteria for legal aid providers h do not know where to find it  Establishing paralegal systems h Institutional support It is deemed more important to cover the cost of police, Training  prosecutors and judges than to spend state funds on lawyers People prefer to resolve issues through the informal justice h Establishing quality criteria for legal aid providers  system or outside the court system, where legal aid has no role Lawyers are paid very little for legal aid work h 232

233 Haiti Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal framework The right to legal aid was first recognized by law in 1864, and the legal aid system Right to legal aid was most recently reformed in 1989, with strong involvement by the Ministry of Justice and the bar association. A new law on legal aid was drafted and sub- The right to legal aid is guaranteed in: mitted to the Executive in 2015. However, due to the postponed elections, Constitution 2 the Parliament has yet to review or act upon the draft law. 2 Separate law on legal aid Criminal procedure law 2 State-funded legal aid is available in four of eighteen jurisdictions, however, 2 A right to legal aid is implicit in national due process provisions, in those four jurisdictions, the quality and efficiency of legal aid is neither consis- but it is not formally recognized tent nor of a high quality. The UN mission, MINUSTAH, runs seven legal aid offic- by law es which are consistently viewed as more efficient and effective. Under the law, legal aid is mainly provided in the form of legal representation Services included before a prosecutor, court and tribunal. as part of legal aid Specialized legal aid services are provided by the State for specific population groups, including persons with disabilities, children, women and refugees, asy- lum seekers and stateless persons. Legal aid is provided upon request from the person who wants legal aid, al- Process for obtaining though the court presiding over a case must also inquire and assess eligibility legal aid during the first appearance of the parties. A request for legal aid can also be ini- tiated by the police or the prosecutor. To receive legal aid, a person must prove eligibility by demonstrating fami- ly hardship (such as multiple children, single parenthood, etc.) or membership of a protected group (such as migrants, non-fluency in the national language, ethnic or religious minority, etc.). Proof that the legal aid applicant’s claim has merit may sometimes need to be established, although no proof is necessary for cases where the State is obliged to provide legal aid under the law. Independent national experts estimate that the general population is ‘some- Awareness of the right what knowledgeable’ about the right to legal aid services, but ‘not knowledge- to legal aid able at all’ about where and how to access them. 233

234 Global Study on Legal Aid – Country Profiles Haiti Latin America and the Caribbean Delivery model The Ministry of Justice and the bar association have chief responsibility for the Legal aid authority management of legal aid. The new proposed draft law on legal aid envisions a le- gal aid board. Legal aid services are provided through the bar association, through pro bono Organisation schemes, and through civil society. Four legal aid offices are presently financed of legal aid services by the State. Seven other legal aid offices are funded by the UN mission. To place a request for services from legal aid providers, the courts contact the Mechanism for bar association, which maintains and coordinates appointments and delivery of assigning legal aid legal aid services. In theory, there are legal aid providers on duty in courts where providers the State has financed four legal aid offices. In practice, the provision of legal aid is ad hoc and non-systematic. State-funded legal aid services are not available in rural areas. Accessing legal aid in urban vs. rural areas 234

235 Global Study on Legal Aid – Country Profiles Haiti Latin America and the Caribbean Service providers Lawyers 1/4,597 1/211,440 and other providers Licensed practicing Full-time legal aid lawyers /people /people lawyers None Paralegals University-based Involved in the provision of some legal law clinics aid services. They provide some general assistance in navigating the justice system, mainly for civil cases. State-funded legal aid providers must have a law degree and show proof Qualifications required of passing a professional examination, be a member of the national bar, have completed an apprenticeship or internship with a practicing lawyer, and be in a contractual relationship with the agency that oversees the administration of legal aid. Legal aid providers are not required by law to engage in continuing education or skills training, and the State does not allot funds to this effect. 235

236 Haiti Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Finances Legal aid services for both criminal and civil cases are free of charge to those Costs to recipients meeting eligibility criteria. Primary legal aid services are provided free of charge in legal advice centers located in city offices, where lawyers/paralegals provide advice. Civil society organisations also provide legal advice to people who come to their offices. Legal aid is not treated as a separate component of the annual justice system Legal aid in the annual budget. The budget for legal aid is by and large determined by the Ministry of justice budget Justice. The State does not provide separate funding for specialized legal aid services to disadvantaged populations, nor does it cover additional services such as inde- pendent investigation, experts, psychological or social work support, etc. Legal aid providers receive a fixed fee for each case. Others sign contracts with Payments to legal the state agency overseeing appointments to receive payment for a set num- aid providers ber of cases (e.g. bulk payment for ten cases). 236

237 Haiti Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons arrested and detained Under the proposed law, legal aid is on criminal charges, persons charged with a criminal offence, persons impris- oned on criminal charges and victims of crime. obliged to provide legal aid to persons who meet a financial thresh- The State is old, children, persons with physical disabilities, refugees, or when the law notes that the interests of justice require it. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, or at least dur- ing questioning before formal charges are filed. (It takes approximately 24 hours for a legal aid provider to appear after notice is given that legal aid is needed in criminal cases.) Legal aid is also provided during trial. In criminal cases, legal aid institutions aim to ensure that the same provider rep- resents the accused/suspect at all stages of the case. It is prohibited for the police to interview someone in the absence of a lawyer. However the police oftentimes questions an accused nonetheless, even before a lawyer has arrived. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are less likely than private lawyers to perform several actions, such as ‘presenting arguments in fa- vour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/ defendant in private before any contact with a state justice official’. Meanwhile, experts find that legal aid lawyers are just as likely as private lawyers to ‘chal- 75- lenge the reliability of evidence against the suspect/defendant, as well as the credibility of witnesses.’ 90% National experts further note that ‘bribery/corruption' and ‘the hiring of a pri- vate lawyer paid by the suspect/defendant’ are amongst the most influential In 2013, between 75-90% of criminal cases filed in court received legal aid factors in reaching a dismissal of charges or acquittal in criminal cases. 237

238 Haiti Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Who is eligible? Legal aid in civil cases There are no specific requirements for a person to be entitled to legal aid; it is as- signed by authorised agencies at their discretion. Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Labor disputes Child custody issues Marital issues 50% From respondents Property issues Claims for State services or disputes with State agencies For what actions is a party eligible for legal aid? 50% Under the law, primary legal aid is available to all. Legal aid is provided to assist with the drafting and filing of complaints and responses, with gaining access to From complainants State services, and to avail victims of violence of protective services. Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class ac- tion cases, but there is public demand for such initiatives to address discrimina- tion, labour rights, consumer rights, environmental protection, and health. According to national experts, women tend to lack awareness about the avail- Women’s access ability of legal aid services at little or no cost, they may not know where to find le- to legal aid services gal assistance, and they many not have confidence in the quality of legal aid ser- vices provided to them. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services only in some legal proceedings, but court support services, such as interpretation and translation of documents, are not provided. The justice system has specialized providers/units for representing child victims, Access to legal aid child witnesses or suspected and accused children, including specialized courts for children and judges, specialized prosecutors and specialized police officers/units. According to national experts, when representing children, legal aid providers routinely reach out to child protection service practitioners for support to assist the child throughout proceedings. 238

239 Haiti Global Study on Legal Aid – Country Profiles Latin America and the Caribbean National experts explain that people prefer to resolve disputes through informal Legal aid and informal justice proceedings because they understand better how they work. Legal aid justice systems services are very rarely provided in informal justice systems. There is no mech- anism that allows cases to be referred between the formal and informal legal systems. Quality safeguards A legal aid provider can refuse to take a case, or ask to be removed from the duty Accountability for to represent a particular legal aid recipient, due to having too many cases, due the quality of legal to lacking expertise in the law or skills required by the specific case, due to in- aid services compatibility with the legal aid recipient, or to a conflict of interest with the le- gal aid recipient. The bar association is formally responsible for monitoring the quality of legal aid Monitoring services; an effort is also made by institutional providers of legal aid to collect and data collection data on the quality of the services they provide. on the quality of legal aid services There is an acute shortage of data in the justice system. For instance, no data is available on the number of criminal or civil cases filed in court where State- funded legal was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 239

240 Mexico Latin America and the Caribbean Mexico 125.4 million Population Federal government system 79% 95% 93% 21% Male literacy rate Female literacy rate Urban population Rural population 0.943 $9,870 GNI per capita Gender Development Index 0.95 0.975 0.925 0.9 $1,045 $4,126 $12,736 HIGH LOW LOW MID/HIGH MID/LOW HIGH MID/LOW MID MID/HIGH -22.4% 0.587 0.756 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

241 Global Study on Legal Aid – Country Profiles Mexico Latin America and the Caribbean Legal Aid at a Glance in Mexico N/A Never conducted 1998 When was the last assessment Annual expenditure Most recent reform of the legal aid system in 1998 of legal aid needs conducted on legal aid per capita in 2013 People who received legal People’s trust in courts assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 2 pay a debt, during the past 3 years 20 Some Citizen survey, WJP Rule of Law Index 2015 A Little 36 No Trust 42 31% 3 3 Sample size: 64 0% 100 % Challenges in accessing legal aid Priority areas for support Legislative drafting advice h Low pay for legal aid providers Development of action plans/policies h Covering the cost of police, prosecutors and judges is prioritized over spending state funds on lawyers Development of quality criteria for legal aid providers  There is little support among the population for spending Establishing paralegal systems h  Institutional support funds to defend accused criminals Some people think that legal aid lawyers are working as part  Training h of the police, prosecutor, or judicial agencies 241

242 Mexico Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal framework The right to legal aid was first recognized by the Constitution of 1917 (Article Right to legal aid 20(A)). The right to legal aid is guaranteed in: Constitution 2 The latest reform of the legal aid system took place in 1998, when the Mexican 2 Separate law on legal aid government adopted the Federal Public Defence Act which improved the cov- 2 Law on judicial procedure erage and quality of defence lawyers across the country. Both the legislative and Civil procedure code 2 Administrative law 2 the executive branches,as well as the courts, played an instrumental role in in- Criminal procedure law 2 troducing this reform. 2 Laws on prosecution Laws on penitentiary 2 State-funded legal aid is available at national, regional and local levels. Implementing regulations for 2 the law on legal aid General baselines for the 2 organisation and functioning of the Institute of Defence For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, and legal assistance (before national courts). Legal aid law- as part of legal aid yers also provide general assistance in navigating the justice system and in ex- ecuting legal documents. Specialized legal aid services are not provided by the State to disadvantaged population groups. Legal aid is provided upon request from the person who wants legal aid or Process for obtaining upon request from the prosecutor or other appropriate State justice actors. The legal aid court presiding over a case must also inquire and assess eligibility during the first appearance of the parties. In criminal cases, a person must establish her/his eligibility by proving status as a recipient of welfare, evidence of low income (if employed), or evidence of membership of a protected group (such as migrants, children, displaced per- sons, refugees, etc.) In civil and administrative cases, the applicant’s word that s/he meets financial or vulnerability criteria is sufficient. No proof is necessary when the State is obliged to provide legal aid under the law for a specific case or situation. Some measures were taken by the State to raise awareness about the right to Awareness of the right legal aid and how to access legal aid services in 2014-15. Independent nation- to legal aid al experts estimate that the general population is ‘somewhat knowledgeable’ about legal aid services. 242

243 Mexico Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the legal aid board which is responsible for overseeing and coordinating the legal aid appointment mechanism, for establishing the national legal aid strate- gy and policy, for setting performance standards, and for overseeing professional training programs. The legal aid board is composed of the Director General of the Federal Institute for Public Defence and of six reputable legal professionals, nomi- nated by the Chairman of the Judicial Council. The Board works closely with the Federal Institute of Public Defenders, which feder- ates public defender’s offices present in each one of the country’s 32 states. To help ensure that public defence meets high quality standards, the Criminal Justice Implementation Commission (SETEC), with the support of international or- ganisations, has developed a set of guidelines for the establishment of a profession- al career service for state public defenders in Mexico. In both criminal and civil cases, legal aid services are organised though the le- Organisation gal aid board, public defender institutions, and panel appointments. of legal aid services For a public defender to be assigned to a case, State agencies contact the legal Mechanism for aid board which maintains a duty roster of available legal aid providers. There assigning legal aid are also legal aid providers on duty in courts and police precincts. providers It usually takes approximately four hours for a legal aid provider to appear after a notice is given that legal aid is needed in a criminal case. Legal aid services are available in both rural and urban areas. According to Accessing legal aid in national experts, the quality of legal services tends to be better in urban areas. urban vs. rural areas 243

244 Mexico Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Service providers Lawyers N/A N/A and other providers Licensed practicing Full-time lawyers /people legal aid lawyers /people Not applicable University-based Paralegals law clinics Not allowed to provide legal aid Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must be registered with va State-authorised roster of legal aid providers, and be in a contractual relation- ship with the agency that oversees the administration of legal aid. Legal aid law- yers must undergo separate testing to be hired as a staff member of the institu- tional legal aid provider. Legal aid providers are required by law to engage in continuing education and/or skills training, and the State partially covers the cost of such continuing education. 244

245 Mexico Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Finances The State covers the cost of primary legal aid services provided in criminal Costs to recipients and civil cases to those meeting eligibility criteria. Legal aid is not a separate component of the annual justice system. The bud- Legal aid in the annual get for legal aid is determined by the parliament, the judiciary, and regional/lo- justice budget cal governments. Specialized legal aid services for disadvantaged populations are funded by the State with substantial contributions from private actors and international do- nors. The State also covers the cost of clerical assistance. Legal aid providers work full-time in institutions funded by the State. Payments to legal aid providers Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, and victims of crime. State is obliged to provide legal aid to persons who meet a financial threshold (less than US$1,800), children, persons with physical or mental disabilities, inter- nally displaced persons, refugees, and persons whose mother tongue is not the language of official proceedings. At what stage of a criminal case? Under the law, qualified legal assistance may be requested from the moment a State agency begins consideration of whether to impose pre-trial detention, or at least from the moment charges are officially filed. It is also provided dur- ing trial, and for any appeal (in national and international tribunals) or cassation. 245

246 Mexico Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Laws and regulations prohibit the police and other investigating agencies from interviewing a person in the absence of a lawyer. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are at times more likely than private lawyers to perform certain actions — for instance ‘present- 25% ing arguments in favour of a suspect’s/defendant’s release pre-trial’, and at oth- er times less likely than private lawyers to perform other actions — for instance People who believe that the police ‘conducting an investigation to establish doubt about the suspect’s/defen- always or often respects the basic dant’s guilt even if the defendant may be guilty’. rights of suspects WJP Rule of Law Index 2015 Furthermore, experts identify ‘a poorly prepared prosecutor’, ‘hiring a private law- yer who receives pay from the suspect/defendant, not from state legal aid funds’, and ‘bribery/corruption’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious 246

247 Mexico Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold (US$1,800), children, persons with physical or mental disabilities, internally dis- Estimated demand for legal aid placed persons, refugees, and persons whose mother tongue is different than services in civil cases the language of official proceedings. 3 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 50% From respondents Labor disputes Child custody issues Claims for State services or disputes with State agencies For what actions is a party eligible for legal aid? In civil cases, a party is eligible to primary legal aid. 50% Public interest litigation / class action cases: From complainants State experts are of the view that there is no public demand for public interest litigation or class action cases. Staff lawyers at institutional legal aid providers (e.g. public defenders) do not coordinate to uniformly challenge common viola- tions of national and international due process rights and human rights. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious 247

248 Global Study on Legal Aid – Country Profiles Mexico Latin America and the Caribbean Neither legal aid advice nor court support services are provided for female vic- Women’s access tims of violence in legal proceedings. to legal aid services According to independent national experts, some women may prefer not to seek out legal assistance as they see court processes as too time-consuming and some may lack confidence in the quality of legal aid services provided to them. Women may also perceive legal aid providers to be biased against them, and therefore may find it difficult to share with them intimate information about a case. There are specialized courts, judges and legal aid providers at the national Access to legal aid and regional levels for child victims, child witnesses or suspected and accused for children children. When representing children, legal aid providers often reach out to parents, psychologists and other childcare professionals for support to assist the child throughout proceedings. According to national experts, when children are represented by legal aid pro- viders (especially those specialized in children’s rights), diversion and alterna- tives to pre-trial detention are more often achieved than in cases where chil- dren are represented by private lawyers, or by non-specialized legal aid lawyers. National experts further note that the frequency of use of alternatives to impris- onment is lower when children are represented by legal aid providers (includ- ing those specialized in children’s rights) than in cases where children are repre- sented by private lawyers. Informal justice mechanisms are not used to resolve disputes. Legal aid and informal justice systems 248

249 Mexico Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Quality safeguards If no legal aid provider arrives, or if a legal aid provider is unprepared or unquali- Accountability for fied, the proceeding is postponed, or a replacement legal aid provider is asked to the quality of legal represent the party. This can sometimes be problematic as there are no formal aid services means of assessing a legal aid provider’s qualifications or level of preparedness. Legal aid providers can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to incompatibility or to a conflict of interest with the legal aid recipient. The quality of legal aid services is monitored by the legal aid board and the ju- Monitoring diciary. Data on legal aid is collected through the review of complaints by legal and data collection aid recipients about a legal aid provider’s action, and by conducting satisfaction on the quality surveys filled out by legal aid recipients. of legal aid services There is a considerable lack of data across the system. For instance, no data is available on the number of criminal or civil cases filed in court where State- funded legal aid was provided. Data about children is not recorded separate- ly, and no data is available on case resolution prior to a cases’ transfer to court. 249

250 Paraguay Latin America and the Caribbean Paraguay 6.553 million Population Unitary government system 59% 96% 94% 41% Male literacy rate Female literacy rate Urban population Rural population 0.956 $4,400 GNI per capita Gender Development Index 0.95 0.925 0.975 0.9 $1,045 $4,126 $12,736 HIGH LOW MID/LOW MID/LOW LOW MID HIGH MID/HIGH MID/HIGH -22.1% 0.529 0.679 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW HIGH LOW MID HIGH VERY HIGH VERY HIGH MID

251 Global Study on Legal Aid – Country Profiles Paraguay Latin America and the Caribbean Legal Aid at a Glance in Paraguay 2011 Never conducted N/A Annual expenditure Most recent reform of the legal When was the last assessment aid system in 2011 on legal aid per capita in 2013 of legal aid needs conducted Challenges in accessing legal aid Priority areas for support Legislative drafting advice h Legal aid is geographically difficult to access; there is a Development of action plans/policies  shortage of lawyers outside urban areas Little support among the population for spending public h Development of quality criteria for legal aid providers Establishing paralegal systems  funds to defend accused criminals Institutional support People may not be aware that legal aid services are available h  at little or no cost, they may not know where to find legal Training   Establishing quality criteria for legal aid providers assistance, or they may not have confidence in the quality Supporting legislative initiatives regarding legal aid for victims of legal services  h There is a need to consolidate judicial independence and to  Improving the quality of legal training by enhancing collaboration between the Judicial School Training Centers of improve the efficiency of judicial institutions h the Judiciary, the Ministry of Public Defence, as well as public The quality of education provided by law schools in both and private universities public and private universities is uneven 251

252 Paraguay Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Legal framework The right to legal aid was first recognized by law in 1992, and the latest substan- Right to legal aid tial reform of the legal aid system took place in 2011. State-funded legal aid is available at national level only. The right to legal aid is guaranteed in: 2 Constitution Separate law on legal aid 2 2 Law on judicial procedure 2 Law on the prosecution 2 Civil procedure code 2 Administrative law Criminal procedure law 2 Legal aid for all types of cases (criminal, civil and commercial, labour, child and Services included adolescence) is mainly provided in the form of legal advice, legal representa- as part of legal aid tion and legal assistance (before the courts). Legal aid providers also provide assistance with the execution of legal documents, legal information in police precincts, prisons or in the community, and general assistance in navigating the justice system. Legal aid is provided upon request from the person who wants legal aid. In crim- Process for obtaining inal cases, no proof of eligibility is necessary for cases where the State is obliged legal aid to provide legal aid under the law. In civil cases, a person must prove eligibility by providing supportive evidence of low income or evidence of meeting a set of ‘vulnerability criteria’. Just like in criminal cases, no proof of eligibility is neces- sary for civil cases where the suspect/defendant is entitled to receiving legal aid under the law. The State has carried out a public information campaign to raise awareness Awareness of the right about the right to legal aid and how to access legal aid services at least once to legal aid over the past three years. Detailed information was provided on how to con- tact relevant service providers, and on services available, including for children. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about the right to legal aid services. 252

253 Paraguay Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Delivery model The Public Defender’s Office — now independent from the judiciary — Legal aid authority acts both as overall coordinating agency and provider of legal aid services. A National Council on Access to Justice was also recently created in 2015. Legal aid services are mainly provided through the public defender’s office. Organisation of legal aid services Additionally, a national programme for the establishment of National Houses of Justice ( ) across the country was launched in 2015, and offers Casas de Justicia community-based means to resolve disputes. The program provides access to basic judicial services such as advice on matters of family violence, alimony, registration in the civil registry and assistance with identity card application, and alternative dispute resolution mechanisms, amongst others. The ‘Casas de Justicia' are separate from the formal court structure and focus on redressing small grievances in low-income urban communities and rural areas. pro bono schemes if they Lawyers can also provide legal aid services through wish so. The courts and the police have a roster of legal aid providers on duty for a given Mechanism for day, and call them in the given order. assigning legal aid providers State-funded legal aid services are provided in rural areas. Accessing legal aid in urban vs. rural areas 253

254 Paraguay Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Service providers Lawyers N/A N/A and other providers Full-time Licensed practicing lawyers legal aid lawyers /people /people Not Applicable Paralegals University-based Not officially recognized law clinics The Catholic University of Asunción, also known as Universidad Católica de Asunción (UCA), has a dedicated Legal Aid office (Consultorio Jurídico) which provides free legal aid services. Legal aid providers are required by law to engage in continuing education or Qualifications required skills training, which is provided to some extent by the public defender’s office. The State partially allots funds to this effect. Given the uneven quality of education provided by law schools, the Judicial School under the Council of the Magistracy plays an important role in providing complementary courses to raise the general level of competencies amongst lawyers. To improve the quality of legal training provided to law students and practicing lawyers, national experts recommend that the Judicial School Training Centers of the judiciary work more closely with the Ministry of Public Defence and pub- lic and private universities. 254

255 Paraguay Global Study on Legal Aid – Country Profiles Latin America and the Caribbean Finances Legal aid services are free of charge for those meeting eligibility criteria. In crim- Costs to recipients inal cases, all costs are covered by the State; legal aid recipients only have to pay for some legal expenses, notifications and edicts, the cost of which are speci- fied by law. Primary legal aid services are provided for free at the office of the public defend- er. The bar association and some civil society organisations also provide legal ad- vice for free to people who come to their offices. Legal aid is a separate component of the annual justice budget. Legal aid in the annual justice budget For both criminal and civil cases, legal aid lawyers are full-time salaried employ- Payments to legal ees in institutions funded by the State. aid providers Provision of legal aid Who is eligible? Legal aid in criminal cases Under article 17 of the Constitution, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on criminal charges. The State is obliged to provide provide legal aid to persons who meet a financial threshold, and to children. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom. In criminal cases, legal aid institutions do not always ensure that the same pro- vider represents the accused/suspect at all stages of the case. 255

256 Paraguay Global Study on Legal Aid – Country Profiles Latin America and the Caribbean To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely than private lawyers to perform certain actions, such as ‘advocating for acquittal or reduction of charges based on weak evidence even if the defendant may be guilty’, even while being less likely to perform other actions, such as ‘presenting 0.5% arguments in favour of a suspect’s/defendant’s release pre-trial’, or ‘conducting Proportion of criminal cases which investigations to establish doubt about the suspect’s or defendant’s guilt even resulted in acquittals after trial if s/he may be guilty’. (2013) Furthermore, experts identify ‘hiring a private lawyer who is paid by the sus- pect/defendant, rather than using State-funded legal aid’ as well as ‘bribery/cor- ruption’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 1.0% proportion of criminal cases for which pre-trial detention was imposed (2013) 25- 0.1% 9% 50% Proportion of criminal cases which were resolved pursuant Proportion of all court cases to a plea agreement, procedural Proportion of criminal cases that are criminal (2013) agreement or expedited trial filed in court for which legal (2013) aid was provided (2013) 256

257 Global Study on Legal Aid – Country Profiles Paraguay Latin America and the Caribbean Who is eligible? Legal aid in civil cases Legal aid in civil cases is provided to persons who meet a financial threshold. Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Labor disputes Child custody issues Property issues 50% From respondents Contactual disputes Administrative matters Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class ac- 50% tion cases. From complainants According to national experts, the absence of specialized legal aid services for Women’s access women — including for cases of gender-based violence — is an important ob- to legal aid services stacle faced by women. Furthermore, experts note that in spite of important awareness-raising efforts led by civil society organisations, women continue to lack awareness about the availability of legal aid services at little or no cost (espe- cially in rural areas), and they may find it difficult to share with a (typically male) legal aid provider intimate information related to a case. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services and court support services, such as interpretation and translation of documents, in some legal proceedings only. The justice system has specialized courts and judges, specialized police officers/ Access to legal aid units, and specialized prosecutors to represent child victims, child witnesses or for children suspected and accused children. According to national experts, legal aid providers, when representing children, rarely reach out to child support professionals to assist the child throughout proceedings. Experts also note that in criminal cases, diversion away from judicial proceed- ings is occasionally used. 257

258 Paraguay Global Study on Legal Aid – Country Profiles Latin America and the Caribbean The Supreme Court created the Office of Mediation in 2000, and to respond to Legal aid and informal sustained high demand for mediation services, a Directorate for Mediation was justice systems subsequently created. Lawyers and paralegals are allowed to provide legal assistance in formal media- tion and alternative dispute resolution processes. To provide assistance in informal justice processes, legal aid providers must at minimum have undergone basic training in legal matters. Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a qualified legal aid provider arrives. There is howev- the quality of legal er no formal means of assessing whether a legal aid provider is unprepared or aid services unqualified, so it is difficult for a person to seek remedy if the services s/he re- ceives are not satisfactory. The Ministry of Public Defence has an Audit Office which serves as an internal Monitoring monitoring mechanism for the legal aid system. The Audit Office also reviews and data collection complaints lodged by legal aid recipients, and requests statistical reports from on the quality public defender’s offices and other institutional legal aid providers. of legal aid services There is an acute shortage of data in the justice system. For instance, data about children is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 258

259 Eastern Europe & Central Asia 260 Armenia 270 Belarus Bulgaria 280 Czech Republic 291 Georgia 301 Kazakhstan 313 Lithuania 324 Moldova 334 Montenegro 346 Slovak Republic 354 Turkmenistan 363 Ukraine 372

260 Armenia Eastern Europe and Central Asia Armenia 3.006 million Population Unitary government system 100% 100% 63% 37% Rural population Female literacy rate Male literacy rate Urban population $4,020 1.008 GNI per capita Gender Development Index $1,045 $4,126 $12,736 0.975 0.95 0.925 0.9 LOW MID/HIGH HIGH MID/LOW MID/HIGH MID LOW HIGH MID/LOW -10.2% 0.658 0.733 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

261 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia Legal Aid at a Glance in Armenia N/A Within the past 5 years 2013 When was the last assessment Annual expenditure The latest reform of the legal aid of legal aid needs conducted on legal aid per capita in 2013 system was carried out in 2013 Priority areas for support Challenges in accessing legal aid Legislative drafting advice Shortage of lawyers, especially outside urban areas h Covering the costs of police, prosecutors and judges is deemed Development of action plans/policies h Setting quality criteria for legal aid providers and designing  more important than spending public funds on lawyers People may not know where to find legal assistance and may h training programs for lawyers not be aware that legal aid services are available at little or no Establishing paralegal systems cost Institutional support People sometimes lack confidence in the quality of legal h Training aid services, and as a result they may prefer to resolve issues  Conducting public information campaigns on the right to legal through the informal justice system or outside the court and legal aid services available  Establishing a performance-based monitoring system for the system, where legal aid has no role legal aid system, including mechanisms for collecting feedback from service users and institutional stakeholders Establishing an officially recognized paralegal system and  enhancing coordination between informal mechanisms (i.e. pro bono schemes and civil society legal clinics in universities, providers) and formal mechanisms (i.e. public defender’s offices)  Advice on budgeting and financing, particularly in regards to refining the policy on State-funded legal aid, and to the possible establishment of a national endowment for legal aid Establishing benchmarks and norms on the workload of public  defenders in criminal and civil/administrative cases, with a view to rationalizing the distribution of cases amongst public defenders across the system 261

262 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in 1998. Right to legal aid The Constitution of Armenia (with amendments done in 2005) provides that The right to legal aid is guaranteed in: “Everyone shall have the right to legal assistance. In cases provided for by law, Constitution 2 legal assistance shall be provided at the expense of state funds.” (Article 20). Law on the judiciary 2 2 Law on the prosecution The Law on Advocacy, adopted in 2004, provided that the State shall guaran- 2 Civil procedure code tee legal aid in criminal and civil cases. It was amended in 2011 to add the pos- 2 Code on administrative offences sibility for various categories of disadvantaged population to receive free le- Law on treatment of arrestees 2 and detainees gal aid also in civil and administrative cases. In 2012, a Strategic Programme for 2 Criminal executive code Legal and Judicial reforms for the period 2012-2016. approved by the President 2 Criminal procedure code of Armenia, mandated the Ministry of Justice and the Chamber of Advocates Implementing regulations for 2 (i.e. the bar association) to develop eligibility criteria for free legal aid based on the law on legal aid 2 Law on advocacy a person's social/financial status, and to carry out a needs assessment for the provision of free legal assistance. State-funded legal aid is available at the national level only. Legal aid is provided for both civil and criminal cases, in the form of legal advice, Services included legal representation and legal assistance (before tribunals). Legal aid providers as part of legal aid also provide general assistance in navigating the justice system, and in execut- ing legal documents. Specialized legal aid services are provided by the State for disadvantaged pop- ulation groups, including persons with disabilities, children, the elderly, migrants, refugees, asylum seekers, stateless persons and internally displaced persons, the convicted, pensioners living alone, children without parents, people receiving medical treatment at psychiatric institutions, and victims of trafficking. The determination of whether or not a person is entitled to legal aid is automat- Process for obtaining ic if the case or legal aid recipient qualifies for legal aid services. In other cases, le- legal aid gal aid is provided upon request from the person who wants legal aid, or upon request from the police or the prosecutor. The court presiding over a case must also assess eligibility during the first appearance of the parties. In both civil and criminal cases, no proof of eligibility is necessary when for a par- ticular case, the State is obliged to provide legal aid under the law. In other civil cases, a person must prove her/his eligibility by providing supportive documen- tation proving her/his status as recipient of welfare for vulnerable populations, providing evidence of low income, membership of a protected group (such as migrants, children, ethnic or religious minority, etc.) 262

263 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia The State has not conducted in recent years public information campaigns to Awareness of the right raise awareness about the right to legal aid and how to access legal aid services. to legal aid Independent national experts estimate that the general population is ‘not at all knowledgeable’ about legal aid services. Delivery model The chief responsibility for the administration of legal aid rests with the Chamber of Legal aid authority Advocates (i.e. the bar association) and the Public Defender’s Office, both of which act as coordinators and providers of legal aid services. Legal aid services in both criminal and civil cases are provided through panel Organisation appointments (constituted ex officio or with contracted lawyers), through the of legal aid services Chamber of Advocates (i.e. bar association) and through pro bono schemes (which are also seen as means for lawyers to acquire experience). Free legal aid in criminal cases is provided primarily through the Office of the Public Defender, which has 24 locations throughout the country with 66 public defenders. The PDO provides relatively limited scale of legal aid on civil and administrative cases. To request the services of a legal aid provider, the courts and police contact the Mechanism for Chamber of Advocates, which coordinates appointments and delivery of servic- assigning legal aid es. The bar maintains a duty roster of legal aid providers, and State agencies can providers contact the bar to file a request. State-funded legal aid services are available in rural areas, although 53 public de- Accessing legal aid in fender’s offices (with only two or three specialists per office) spread across the urban vs. rural areas country is insufficient to meet the demand, especially that most of these offices provide assistance with criminal cases only. 263

264 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia Service providers Lawyers 1/1,670 1/56,720 and other providers Licensed practicing Full-time legal aid lawyers lawyers /people /people 1/81,247 University-based /people Paralegals law clinics Students are allowed to provide primary Even if they are not officially recognized, legal aid, to help prepare legal documents, paralegals are allowed to provide legal aid and to conduct mediation services in both criminal and civil cases, including legal advice on a one-time or two-time basis, legal representation before a prosecutor or a court, provision of legal information in police precincts or prisons, general assistance in navigating the justice system, and assistance in executing legal documents Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must be members of the bar and have completed an apprenticeship or internship with a practicing lawyer. To become a staff member of the Public Defender’s Office, lawyers need to un- dergo separate testing and interviews. Paralegals must have completed a law degree, and show proof of passing a pro- fessional examination (bar examination). However, law students of the Yerevan State University can provide primary legal aid even prior to passing the bar ex- amination at the Legal Clinic of the Law Faculty. Legal aid providers are required by the Chamber of Advocates and the State to engage in continuing education or skills training, but the State does not allot funds to this effect. 264

265 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia Finances Primary legal aid services are available free of charge (for those meeting eligi- Costs to recipients bility criteria) at the office of the Public Defender, at the Chamber of Advocates (which maintains a roster of qualified lawyers available to provide legal advice), at the offices of civil society organisations, and at the School of Advocates, which provides legal aid for free every Thursday in a team of a practicing lawyer and a student/s of the School preparing for bar examination. Legal aid in the annual justice budget $0.21 Legal aid budget per capita in 2013 The national budget for legal aid is requested by the Ministry of Justice and ap- proved in the annual state budget by the Parliament. This legal aid allocation is 179% fixed, since 2013. The legal aid budget grew by 179% There is no separate funding mechanism to cover the cost of specialized legal from 2007 to 2013 aid services. Additional services, such as independent investigations, experts, psy- chological/social work support, clerical assistance, are not covered by the State. In both criminal and civil cases, for state funded legal aid, the aid providers work Payments to legal full-time in institutions funded by the State, such as in Public Defender’s Offices. aid providers The Law on Advocacy also allows for other advocates (not Public Defenders) to be contracted, subject to payment by hours worked (at an hourly rate equal to the salary of Yerevan City prosecutor). So far however, few Public Defenders Offices have issued such contracts as they are unable to cover the fees of these additional advocates from their own limited budget. 265

266 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime and witnesses. According to article 20 of the Constitution, “everyone shall have a right to the assistance of a legal counsel chosen by her/him starting from the moment of her/his arrest, and/or subjection to a compulsion measure or indictment”. In par- ticular, the State is obliged to provide legal aid to persons who meet a financial threshold, children, persons with physical, intellectual or mental disabilities, in- ternally displaced persons and refugees, persons whose mother tongue is not the language of official proceedings, persons who potentially face a prison sen- tence, family members of soldiers deceased while defending the borders of the country, participants in the Great Patriotic War and in military actions to defend <10% the country’s borders, the unemployed, pensioners who live alone, insolvent Proportion of criminal court cases persons, and victims of trafficking and exploitation. (2013) At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, or at least from the moment charges are officially filed. Legal aid is also provided during trial, for 2% any appeal or cassation (including to international tribunals), and for consid- eration of probation, or social rehabilitation/reintegration matters after release Criminal court cases which resulted in acquittals (2013) from prison. It is prohibited by law for the police to interview someone in the absence of a lawyer, unless the person agrees to waive this right. This can be problematic when the police determines the person to have a right to legal aid only after the witness has incriminated him/herself. 75% In criminal cases, legal aid institutions aim to ensure that the same provider rep- Criminal court cases which had resents the accused/suspect at all stages of the case. pre-trial detention imposed (2013) 266

267 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that there is no noticeable difference in the quality of services provided by legal aid lawyers, when compared with ser- vices provided by private lawyers. Furthermore, national experts identify ‘a well- prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘the strength of the evidence’ to be amongst the most in- fluential factors in reaching a dismissal of charges or acquittal in criminal cases. Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to anyone who meets any of the same eligibil- ity criteria listed above for criminal cases. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Property issues Contractual disputes Marital issues Estimated demand for legal aid services in civil cases Labor disputes Administrative matters and tort claims 30% For what actions is a party eligible for legal aid? From respondents Further to the provision of primary legal aid, more specific legal aid can be offered to assist with the drafting or filing of a complaint or a response, to gain access to State services, and to provide victims of violence with protective ser- vices. Legal aid can also be provided throughout proceedings. Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class ac- 70% tion cases, but there is public demand for such initiatives to address consumer From complainants rights, discrimination, health issues, environmental protection and labour rights. 267

268 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia According to national experts, women may not always be aware that legal aid Women’s access services are available at little or no cost, and may not know where to find legal to legal aid services assistance. Experts add that women often see court processes as too time-con- suming, and legal aid providers as lacking gender sensitivity. As a result, women may prefer not to seek out legal assistance. A particular challenge faced by wom- en relates to the financial criteria for eligibility to legal aid, which often consid- ers overall household income rather than women’s (considerably lower) individ- ual income. Female victims of violence (including victims of sexual and gender-based vio- lence) do receive legal aid services, as well as court support services, such as in- terpretation and translation of documents. The justice system does not have specialized juvenile courts, but has specialized Access to legal aid judges, lawyers, paralegals and police units specifically dedicated to handling for children cases involving child victims, child witnesses or suspected and accused children. When representing children, legal aid providers often reach out to parents, so- cial workers and medical and/or mental health professionals for support to as- sist the child throughout proceedings. When comparing criminal cases where children are represented by legal aid providers, and cases where children are represented by private lawyers, indepen- dent national experts observe that there is no noticeable difference in the use of diversion, alternatives to pre-trial detention, and alternatives to imprisonment. 53% In 2013, in 53% of cases where a child was sentenced to imprisonment, imprisonment was not applied by the courts; educational-disciplinary measures were imposed instead 268

269 Global Study on Legal Aid – Country Profiles Armenia Eastern Europe & Central Asia Informal justice proceedings typically handle marital or family disputes, child Legal aid and informal custody issues, inheritance disputes, and disputes related to informal contracts justice systems and labor agreements. As explained by national experts, people may prefer to resolve disputes through informal justice proceedings because they are more confident that they will lead to a negotiated outcome that is acceptable to all parties. Informal justice mechanisms allow a lawyer to provide assistance in formal me- diation and alternative dispute resolution processes, and there is a mechanism that allows cases to be referred between the formal and informal justice systems. 1% Roughly 1% of disputes are resolved through formal mediation or alternative dispute resolution processes (2013) Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a qual- the quality of legal ified legal aid provider arrives. This can sometimes be problematic as there are aid services no formal means of assessing a legal aid provider’s qualifications or level of preparedness. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he doesn’t have the necessary expertise, or if s/he has a conflict of interest with the legal aid recipient. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the Chamber of Advocates, which reviews complaints by legal aid recipients. and data collection Although quality control mechanisms for handling individual cases are in place, on the quality the Public Defender's Office has yet to establish a regular practice of systemati- of legal aid services cally analyzing the quality of legal aid services provided by public defenders. For instance, there is no system in place for collecting user feedback — e.g. through client/stakeholder surveys — which would allow for the regular monitoring of public perceptions of public defenders. There remains other important data gaps in the justice system. For instance, no data is available on case resolution prior to a case’s transfer to court, and on the provision of legal aid in criminal and civil cases. 269

270 Belarus Eastern Europe & Central Asia Belarus 9.470 million Population Unitary government system 100% 99% 76% 24% Rural population Female literacy rate Male literacy rate Urban population $7,340 1.021 GNI per capita Gender Development Index $1,045 $4,126 $12,736 0.975 0.95 0.925 0.9 MID/LOW LOW HIGH MID/LOW MID/HIGH MID LOW HIGH MID/HIGH -7.1% 0.741 0.798 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW VERY HIGH VERY HIGH MID MID HIGH HIGH

271 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia Legal Aid at a Glance in Belarus Never conducted 2012 N/A When was the last assessment The latest reform of the legal aid Annual expenditure of legal aid needs conducted on legal aid per capita in 2013 system was carried out in 2012 People who received legal People’s trust in courts when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 8 A lot pay a debt, during the past 3 years Some 34 Citizen survey, WJP Rule of Law Index 2015 A Little 26 32 No Trust 49% 3 3 Sample size: 82 100 % 0% Challenges in accessing legal aid Priority areas for support  Legislative drafting advice h Shortage of lawyers and low pay for legal aid work h People may not understand how legal aid services can help  Development of action plans/policies them, may not know where to find legal assistance, and may Development of quality criteria for legal aid providers  not be aware that legal aid services are available at little Establishing paralegal systems or no cost Institutional support Training People sometimes lack confidence in the quality of legal aid h services and think that legal aid lawyers are part of judicial agencies. Covering the cost of police, prosecutors and judges tends h to be prioritized over public expenditure on lawyers 271

272 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in 1993 after the adoption of the Law Right to legal aid “On Advocacy” (there is no separate law on legal aid as such.) The right to legal aid is guaranteed in: The most recent reform of the legal aid system took place in 2012. The Ministry 2 Constitution of Justice, the parliament and the bar association played an instrumental role 2 Civil procedure code in introducing this reform. 2 Administrative law 2 Laws on pre-trial detention State-funded legal aid is available at national, regional and local levels. 2 Laws on the penitentiary 2 Criminal procedure code 2 Law on advocacy For both civil and criminal cases, legal aid is provided in the form of legal ad- Services included vice (on actions a person may appropriately take), legal representation (be- as part of legal aid fore a court), legal assistance (with taking any appropriate action), general as- sistance with navigate the justice system and assistance with the execution of legal documents. The State however does not finance legal aid in civil cases, nor provide special- ized legal aid services for specific population groups, such as migrants or dis- abled persons. The process for obtaining legal aid is initiated upon request from the person Process for obtaining who wants legal aid, or upon request from the police. The court presiding over legal aid a case must also inquire and assess eligibility during the first appearance of the parties. The determination is automatic if the case or legal aid recipient qualifies for legal aid services, In criminal cases, a person must prove his/her eligibility for legal aid by proving that s/he meets a certain financial threshold. The agency responsible for legal aid appointments will further determine whether the interests of justice require the provision of legal aid in the given specific case. No proof is necessary when the case or situation oblige the State to provide legal aid under the law. A public information campaigns to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services (including contact details of relevant offic- to legal aid es) was conducted by the State in 2014-15. Independent national experts esti- mate that the general population is ‘somewhat knowledgeable’ about legal aid services. 272

273 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia Delivery model The Ministry of Justice has the chief responsibility for the management of legal aid. Legal aid authority There is no legal aid board. Legal aid services in both criminal and civil cases are organised through the bar Organisation association. Legal aid services are also provided through pro bono schemes in of legal aid services both criminal and civil cases (the provision of pro bono services is a condition for membership in the bar; it is also a means for junior lawyers to acquire expe- rience.) Some NGOs provide legal aid free of charge to migrants and persons with disabilities, as well as to other vulnerable groups. To request the services of a legal aid provider, the courts and the police contact Mechanism for the bar association, which coordinates appointments of legal aid providers and assigning legal aid delivery of services. providers Legal aid services are available in rural areas, but the quality of legal services Accessing legal aid in tends to be higher in urban areas. urban vs. rural areas 273

274 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia Service providers Lawyers 1/4,982 N/A and other providers Full-time Licensed practicing lawyers legal aid lawyers /people /people Not applicable University-based Paralegals law clinics Do not have an official status Students are authorised to provide primary legal aid services in the form of legal advice Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must also be members of the national bar and have completed an apprenticeship or internship with a prac- ticing lawyer. Legal aid providers are required by the bar association and the State to engage in continuing education or skills training, but the State does not allot funds to this effect. Finances The State does not finance legal aid in civil cases. Those meeting the eligibil- Costs to recipients ity criteria can obtain primary legal aid services free of charge. When a fee is charged, it is established in a ‘client agreement’. 274

275 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia There is a separate line in the annual justice budget dedicated to the provision Legal aid in the annual of legal aid. The bar association participates in budgetary decisions. justice budget The cost of specialized legal aid services is covered by the State and internation- al donors. Additional services, such as independent investigations, experts, psy- chological/social work support, clerical assistance, are not covered by the State. Legal aid providers receive a fixed fee for each procedural action taken (e.g. pres- Payments to legal ence in court, representation at interrogation, etc.) or for each day of work on a aid providers criminal case. Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons arrested and detained on crim- In criminal cases, legal aid is inal charges, persons charged with a criminal offence, persons imprisoned on criminal charges and victims of crime. The State is obliged to provide legal aid to children, persons with physical, intel- lectual or mental disabilities, persons whose mother tongue is not the language of official proceedings, and persons who potentially face death penalty. Each ap- plication is also reviewed on the basis of the case’s gravity, complexity, or case type, as identified in the law. <10% Proportion of criminal court cases At what stage of a criminal case? (2013) Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom (it usually takes six hours for a legal aid lawyer to appear after notice is given that legal aid is needed in criminal cases) or at least from the moment charges are officially filed, and throughout the proceedings. It is prohibited by law for the police to interview someone in the absence of a lawyer, unless the person is interviewed as a witness. This can be problematic as 10% the police sometimes determines the person to have a right to legal aid only af- ter the witness has incriminated him/herself. Proportion of criminal court cases In criminal cases, legal aid institutions aim to ensure that the same provider rep- for which State-funded legal aid was provided (2013) resents the accused/suspect at all stages of the case. 275

276 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers, when compared with private lawyers, are less likely to perform actions such as ‘presenting argu- ments in favour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/defendant in private before any contact with a state justice official’. 63% ‘Hiring a private lawyer who is paid by the suspect/defendant’, rather than seek- ing State-funded legal aid assistance, is identified by national experts as one of People who believe that the police the most influential factors for reaching a dismissal of charges or acquittal. always or often respects the basic rights of suspects WJP Rule of Law Index 2015 How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention 25% Delay of cases Proportion of criminal court cases Poor judicial decisions in which pre-trial detention was imposed (2013) Inadequate resources Inadequate criminal defence Corruption Judicial independence 39% Bias against marginalized people Proportion of criminal court cases Inadequate ADRs which were resolved pursuant to a plea agreement, procedural 3 3 agreement or expedited trial (2013) Not very serious Very serious Who is eligible? Legal aid in civil cases The State does not finance legal aid in civil cases. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Child custody issues Labor disputes Marital issues 5.7 The number of civil cases filed in Property issues Tort claims and disputes court is 5.7 times higher than the with State agencies number of criminal cases (2013) 276

277 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia Estimated demand for legal aid Public interest litigation / class action cases: services in civil cases State-funded legal aid is not provided for public interest litigation and class ac- tion cases, but there is public demand for such initiatives to address discrim- ination, health issues, environmental protection, labour rights and consumer rights. 20% From respondents How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid 80% Location of Courthouses From complainants Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious According to national experts, women often do not understand how legal aid Women’s access services can help them, and may not be aware that legal aid services are available to legal aid services at little or no cost. The absence of specialized legal aid services for women — in- cluding for family matters and for cases of gender-based violence — is another important obstacle to women’s access to legal aid. Female victims of violence (especially female victims of human trafficking) re- ceive legal aid services in some legal proceedings, as well as court support ser- vices, such as interpretation and translation of documents. 277

278 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia The justice system has specialized courts, judges, prosecutors, police units and Access to legal aid lawyers/paralegals specifically dedicated to handling cases involving child vic- for children tims (especially for cases of sexual abuses), child witnesses or suspected and ac- cused children. When representing children, legal aid providers often reach out to parents, so- cial workers, medical and/or mental health professionals and other profession- als for support to assist the child throughout proceedings. When comparing criminal cases where children are represented by legal aid providers, and cases where children are represented by private lawyers, inde- pendent national experts observe that the use of diversion, alternatives to pre- trial detention, and alternatives to imprisonment is more frequent when chil- dren are represented by legal aid lawyers. Informal justice proceedings typically handle marital or family disputes, child Legal aid and informal custody disputes, land and property disputes, inheritance disputes, informal justice systems contracts and labor agreements. According to national experts, people prefer to resolve disputes through infor- mal justice proceedings because they take less time. People also tends to be more confident that they will lead to a negotiated outcome that is acceptable to all parties. Informal justice mechanisms allow for a lawyer to represent parties in the medi- ation/adjudication process or to provide advice in customary or religious medi- ation/adjudication processes. There is also a mechanism that allows cases to be referred between the formal and informal justice systems. Legal aid providers supporting formal mediation/alternative dispute resolution processes require a law degree. For customary or religious mediation/adjudica- tion processes, higher education and specific training are required. 278

279 Global Study on Legal Aid – Country Profiles Belarus Eastern Europe & Central Asia Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a qual- the quality of legal ified legal aid provider arrives. aid services A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he has too many cases, if s/ he lacks expertise in the law or skills required by the specific case, or if s/he has a conflict of interest with the legal aid recipient Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the bar association. The bar collects and reviews complaints about legal aid pro- and data collection viders’ actions lodged by legal aid recipients, and sporadically conducts quality on the quality checks across the legal aid system. of legal aid services 279

280 Bulgaria Eastern Europe & Central Asia Bulgaria 7.224 million Population Unitary government system 99% 98% 74% 26% Rural population Female literacy rate Male literacy rate Urban population $7,620 0.991 GNI per capita Gender Development Index $1,045 $4,126 $12,736 0.975 0.95 0.925 0.9 MID/LOW LOW HIGH MID/LOW MID/HIGH MID LOW HIGH MID/HIGH -10.5% 0.699 0.782 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

281 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia Legal Aid at a Glance in Bulgaria $0.83 Within the past 5 years 2006 Annual expenditure When was the last assessment Most recent reform of legal aid of legal aid needs conducted on legal aid per capita in 2013 system was carried out in 2006 People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 4 A lot pay a debt, during the past 3 years 30 Some Citizen survey, WJP Rule of Law Index 2015 37 A Little No Trust 30 32% 3 3 Sample size: 31 100 % 0% Priority areas for support Challenges in accessing legal aid  Shortage of lawyers outside urban areas, yet the bar h Legislative drafting advice Development of action plans/policies association is reluctant to allow paralegals to fill the gap Development of quality criteria for legal aid providers  of available lawyers h Low pay of lawyers for legal aid work; people generally find Establishing paralegal systems   Institutional support it more important to cover the cost of police, prosecutors and judges than to spend public funds on lawyers Training  Little support among the population for spending public h funds to defend accused criminals People sometimes lack confidence in the quality h of legal aid services h People may not know that legal aid services are available at little or no cost, or may not know where to find legal assistance 281

282 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in 1997. Right to legal aid The most recent reform of the legal aid system took place in 2006, when the The right to legal aid is guaranteed in: Parliament adopted the Act on Legal Aid establishing the legal aid system in Constitution 2 civil and administrative cases as well as free legal representation in civil, admin- 2 Separate law on legal aid istrative and criminal proceedings. 2 Criminal procedure law 2 Law on the judiciary State-funded legal aid is available at national, regional and local levels. 2 Civil procedure code 2 Administrative law Implementing regulations for 2 the law on legal aid For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, provision of legal information and legal assistance (before as part of legal aid tribunals). Legal aid lawyers also provide general assistance in navigating the justice system, and in executing legal documents. Specialized legal aid services are provided by the State for disadvantaged pop- ulation groups, including persons with disabilities, children, women, the elder- ly, migrants, refugees, asylum seekers, stateless persons, and internally displaced persons. Legal aid is provided upon request from the person who wants legal aid, upon Process for obtaining request from the police or the prosecutor, or upon request of the institution that legal aid oversees appointment of legal aid providers. The court presiding over a case must also assess eligibility during the first appearance of the parties. In both civil and criminal cases, no proof of eligibility is necessary when, for a particular case, the State is obliged to provide legal aid under the law. In oth- er civil cases, a person must prove her/his eligibility by showing a paper prov- ing status as a recipient of welfare or state subsidies, or by demonstrating fam- ily hardship (e.g. multiple children, single parent, family member disability, etc.), providing evidence of low income, or membership of a protected group (such as migrants, children, ethnic or religious minority, etc.) It may also be determined by competent authorities that the interests of justice require provision of legal aid, or they may require proof that the legal aid applicant’s claim has merit. 282

283 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15, and to legal aid provided specific contact details of relevant offices to go to for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the National Legal Aid Bureau which is appointed by the bar association and the Prime Minister. The Legal Aid Bureau meets at least once in 3-4 months. Legal aid services in both criminal and civil cases are organised through pub- Organisation lic defender institutions, the bar association, and the National Legal Aid Bureau. of legal aid services To request the services of a legal aid provider, the courts and police contact the Mechanism for bar association, which coordinates appointments and delivery of services. The assigning legal aid National Legal Aid Bureau maintains a duty roster of legal aid providers, and providers State agencies can contact the Bureau to file a request. There are also legal aid providers on duty in courts and police precincts. Legal aid services are available in rural areas. However, the quality of legal servic- Accessing legal aid in es tends to be better in urban areas. urban vs. rural areas 283

284 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia Service providers Lawyers 1/578 1/2,408 and other providers Full-time Licensed practicing /people lawyers legal aid lawyers /people University-based Paralegals law clinics Are allowed to provide legal advice in civil and administrative cases Legal aid providers must have a law degree and must show proof of passing Qualifications required a professional examination (bar examination). They must also be members of the bar, have completed an apprenticeship or internship with a practicing law- yer, a judge or other State justice agency, and have a contractual relationship with the agency that oversees administration of legal aid. To become a staff member of the institutional legal aid provider, lawyers need to undergo separate testing. They also have to be registered in a State-authorised roster of legal aid providers. Legal aid providers are not required by the bar association or the State to en- gage in continuing education or skills training, but the State partially allots funds to this end. Paralegals are not required to go through any training to be accredited to pro- vide legal services. 284

285 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia Finances Primary legal aid services are available free of charge at the administrative offic- Costs to recipients es of legal advice centres in cities or towns, at the offices of civil society organisa- tions, as well as at the Regional Consultative Centers in Vidin city and Sliven city. Legal aid in the annual justice budget $0.83 Legal aid budget per capita in 2013 Legal aid is a separate component in the annual justice system budget. The na- tional budget for legal aid is determined by the Parliament, the Ministries of Finance and Justice, and the National Legal Aid Bureau. There exists a separate funding mechanism to cover the cost of specialized legal aid services, including provision of funds by private companies, foundations and international donors. Additional services, such as independent investigations or psychological/social support, are not covered by the State. In both criminal and civil cases, legal aid providers receive a flexible fee for Payments to legal each type of case, as determined by the Regulations on the Organisation and aid providers Activities of the National Legal Aid Bureau. 285

286 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia Provision of legal aid Who is eligible? Legal aid in criminal cases to persons arrested and detained on criminal available Under the law, legal aid is charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime and witnesses. obliged to provide legal aid to persons who meet a financial thresh- The State is old (US$200), children, persons with physical, intellectual and mental disabilities, internally displaced persons, refugees, persons whose mother tongue is not the language of official proceedings, persons who face a potential prison sentence for at least ten years or other severe criminal sanctions. Legal aid is also provid- ed when it is required by the interests of justice or due to the case’s gravity, com- plexity, or case type, as identified in the law. At what stage of a criminal case? Under the law, legal aid should be provided from the moment when a law en- forcement representative restricts the suspects/defendant’s freedom, during questioning of a potential suspect/defendant before formal charges are filed, or at least from the moment when charges are officially filed. Legal aid is also pro- vided during trial and for any appeal or cassation. 50-75% Proportion of criminal court cases It is prohibited by law for the police to interview someone in the absence of (2013) a lawyer, unless the person is interviewed as a witness, and the courts are strict about excluding evidence or statements made in the absence of a legal aid provider. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that there is no noticeable difference in the quality of services provided by legal aid lawyers, when compared with ser- vices provided by private lawyers. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 58% People who believe that the police always or often respects the basic rights of suspects WJP Rule of Law Index 2015 286

287 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold (US$200), children, persons with physical, intellectual or mental disabilities, in- ternally displaced persons and refugees. 5 types of civil cases for which legal aid services are most Estimated demand for legal aid commonly sought and for which State-funded legal aid is available services in civil cases Child custody issues Property issues Marital issues 15% From respondents Labor disputes Administrative matters For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with drafting and filing claims for State services or disputes with 85% State agencies. Legal aid can also be provided throughout dispute resolution From complainants proceedings or mediation. 287

288 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia Public interest litigation / class action cases: National experts estimate that there is public demand for public interest litiga- tion and class action cases to address discrimination, labour rights, consumer rights, environmental protection and health. State-funded legal aid is provid- ed for such initiatives. Furthermore, staff lawyers coordinate to uniformly chal- lenge common violations of national and international due process rights and human rights. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious According to national experts, women may not always be aware that legal aid Women’s access services are available at little or no cost, and many not know where to find legal to legal aid services assistance. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings, as well as court support services, such as interpretation and translation of documents. At regional level, the justice system has specialized courts, judges, lawyers/para- Access to legal aid legals and police units specifically dedicated to handling cases involving child for children victims, child witnesses or suspected and accused children. When representing children, legal aid providers often reach out to parents, so- cial workers and other childcare professionals for support to assist the child throughout proceedings. 288

289 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia In criminal cases, national experts observe that diversion, alternatives to pre-tri- al detention, and alternatives to imprisonment are more often achieved when children are represented by legal aid providers than in cases where they are rep- resented by private lawyers. National experts also note that this is even more the case when legal aid providers specialize in children’s rights, compared with non- specialized legal aid providers. In criminal cases where legal aid is provided to children, legal aid providers ad- vocate for and implement in practice the legally binding requirement to ensure the presence of parents at all times. Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative dispute resolution processes, and there are mechanisms that justice systems allow cases to be referred between the formal and informal justice systems. Legal aid service providers can work across different systems. To qualify for formal mediation/alternative dispute resolution processes legal aid providers must have a law degree, or a paralegal certificate. They also need to undergo training on legal matters. 289

290 Global Study on Legal Aid – Country Profiles Bulgaria Eastern Europe & Central Asia Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a legal aid provider arrives. the quality of legal aid services If the legal aid provider is unprepared or unqualified, then a replacement legal aid provider is asked to represent the party instead of the assigned provider. This can sometimes be problematic as there are no formal means of assessing a le- gal aid provider’s qualifications or level of preparedness. A legal aid provider cannot refuse to take a case if it is assigned to him or her. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the National Legal Aid Bureau, the Ministry of Justice, the bar association, a peer and data collection review team organised by the legal aid authority or bar association, and a re- on the quality search institution that reports on its conclusions to the government and oth- of legal aid services er stakeholders. Data for monitoring the quality of legal aid services is collected through assess- ments by justice actors, review of complaints by legal aid recipients, satisfaction surveys by legal aid recipients, and through the monitoring of services provid- ed in court. 290

291 Czech Republic Eastern Europe & Central Asia Czech Republic 10.51 million Population Unitary government system 73% 27% N/A N/A Female literacy rate Rural population Urban population Male literacy rate $18,370 0.980 Gender Development Index GNI per capita 0.975 0.95 $1,045 $4,126 $12,736 0.9 0.925 MID/LOW MID/HIGH LOW MID/LOW MID/HIGH MID LOW HIGH HIGH -5.4% 0.870 0.823 HDI Loss in HDI due to inequality Inequality-adjusted HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW MID MID HIGH HIGH VERY HIGH VERY HIGH

292 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia Legal Aid at a Glance in the Czech Republic N/A Continuously N/A Latest reform Annual expenditure When was the last assessment of legal aid needs conducted. of the legal aid system on legal aid per capita in 2013 The legal aid system is subject to continuous restructuring through the enactment and amendment of various laws People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 10 pay a debt, during the past 3 years Some 47 Citizen survey, WJP Rule of Law Index 2015 A Little 25 18 No Trust 33% 3 3 100 % 0% Sample size: 281 Challenges in accessing legal aid Priority areas for support Low pay of lawyers for legal aid work and shortage of lawyers Legislative drafting advice h Development of action plans/policies  outside urban areas Development of quality criteria for legal aid providers The quality of services provided by legal aid lawyers is uneven h Little support among the population for spending public funds h Establishing paralegal systems to defend accused criminals Institutional support Training h People may not know where to find legal assistance and may not understand how legal aid providers can help them h People may not know that legal aid services are available at little or no cost 292

293 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia Legal framework Legal aid was first recognized in 1992, in the Charter of Fundamental Rights Right to legal aid and Freedoms which is a part of the constitutional order of the Czech Republic. Since then, the legal aid system has been subject to continuous restructuring The right to legal aid is guaranteed in: through enactment and amendment of various laws. 2 Civil procedure code 2 Administrative law State-funded legal aid is available at national level only. Criminal procedure law 2 2 Articles 37 and 40 of Act 2/1993 - Charter of Fundamental Rights and Freedoms 2 Act 349/1999 On the Ombudsman 2 Art 6 of Act 45/2013 On the victims of crimes Article 18 of Act 85/1996 On the 2 legal professions For both criminal and civil cases, legal aid is provided in the form of legal repre- Services included sentation, legal assistance (before national tribunals), and provision of legal in- as part of legal aid formation. Legal aid lawyers also provide general assistance in navigating the justice system. Disadvantaged population groups receive specialized legal aid services specifi- cally focused on their needs. Legal aid is provided upon request from the person who wants legal aid. Process for obtaining The court presiding over a case must also assess eligibility during the first legal aid appearance of the parties. The determination is automatic if the case or legal aid recipient qualifies for legal aid services. However, without prejudice to the above-mentioned, provision of legal aid services depends on the type of case. In both criminal and civil cases, a person must prove his/her eligibility by show- ing a paper proving status as a recipient of welfare or state subsidies for indi- gent and vulnerable members of the population, or by demonstrating family hardship (e.g. multiple children, single parent, family member disability, etc.), by providing evidence of low income if employed, or by obtaining the applicant’s word that s/he meets financial or vulnerability criteria. Provision of legal aid also depends on the complexity of the matter requiring assistance and the type of case. In addition, for criminal cases, the applicant’s tax filing for the previous year should be provided. 293

294 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15. to legal aid Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. Delivery model There is no central legal aid authority which would have the chief responsibility Legal aid authority for the management and administration of legal aid. In both criminal and civil cases, legal aid services are organised through panel Organisation ex officio appointments (e.g. , contract lawyers), through the bar association, and of legal aid services through civil society organisations. Additionally, in civil cases, legal aid services are organised through public defender institutions. Legal aid services are also provided through pro bono schemes in both crimi- nal and civil cases (the provision of pro bono services is a condition for mem- bership in the bar). Courts have a roster of duty legal aid providers (barristers). Mechanism for assigning legal aid Usually, it takes about six hours for a legal aid provider to appear after notice is providers given that legal aid is needed in a criminal case. Legal aid services are available in rural areas, and there is no difference in the ef- Accessing legal aid in fectiveness of legal aid services provided in urban and rural areas. urban vs. rural areas 294

295 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia Service providers Lawyers 1/698 N/A and other providers Full-time Licensed practicing /people lawyers legal aid lawyers /people Not applicable University-based Paralegals law clinics Are not recognized by law Legal aid providers must have a law degree. Other qualifications depend on the Qualifications required type of case. To become a staff member of the institutional legal aid provider, legal aid law- yers do not need to undergo any continuing education and/or skills training. Finances Primary legal aid services are available free of charge at the office of the pub- Costs to recipients lic defender, or other state-funded institutional legal aid providers, as well as at the offices of civil society organisations. The bar association maintains a roster of qualified lawyers available to provide legal advice. While legal aid services are generally free of charge to those meeting eligibility criteria, there exists a sliding scale of payment, based on the financial status of a person seeking legal aid. 295

296 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia Legal aid is not a separate component in the annual justice system budget. Legal aid in the annual justice budget Additional services, such as independent investigations, experts, psychological/ social work support, clerical assistance, are not covered by the State. Payment for legal aid services depends on the type of case. Payments to legal aid providers Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons charged with a criminal offence Under the law, legal aid is and victims of crime. The State is to provide legal aid to children and persons with intellec- obliged tual/mental disabilities. Legal aid is also provided when it is required by the interests of justice or according to the case’s gravity, complexity, or case type, as identified in the law. At what stage of a criminal case? <10% Under the law, legal aid should be provided during an identification procedure with the suspect’s/defendant’s participation, as well as during a search of the Proportion of criminal court cases suspect’s/defendant’s residence. Legal aid should also be provided from the (2013) moment when charges are officially filed, as well as during trial and for any ap- peal or cassation. It is not prohibited by law for the police to interview someone in the absence of a lawyer. 3.71% To what extent are legal aid services in criminal cases seen as effective? Proportion of criminal court cases Independent national experts estimate that there is no noticeable difference in which pre-trial detention was in the quality of services provided by legal aid lawyers and private lawyers. imposed (2013) Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 0.12% Proportion of criminal court cases which were resolved pursuant to a plea agreement, procedural agreement or expedited trial (2013) 296

297 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption 85% Judicial independence People who believe that the police Bias against marginalized people always or often respects the basic Inadequate ADRs rights of suspects WJP Rule of Law Index 2015 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold, children, and persons with physical or intellectual/mental disabilities. Without prejudice to the above-mentioned, it is provided on a case-by-case basis. For what actions is a party eligible for legal aid? State-funded legal aid is made available in the vast majority of civil cases pro- vided the person concerned can prove that s/he is entitled to it (e.g. meeting the financial threshold criterion) or that s/he fulfills other statutory conditions (e.g. age below 18 or mental disability). 25 Public interest litigation / class action cases: In 2013, the number of civil and There is public demand for State-funded legal aid provided for public interest administrative cases was 25 times the number of criminal cases (2013) litigation and class action cases. 297

298 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia Estimated demand for legal aid How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city services in civil cases where you live? According to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid 50% Location of Courthouses From respondents Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness 50% of remedies 3 3 Not very serious Very serious From complainants Female victims of violence (including victims of sexual and gender-based Women’s access violence) receive legal aid advice in all legal proceedings. to legal aid services However, legal aid is not provided for family and civil matters or for cases of gen- der-based violence, and there are no specialized legal aid services for women. Furthermore, means tests for eligibility to legal aid often consider overall house- hold income rather than the women’s income specifically, which is often much lower. National experts explain that a major challenge faced by women is the fact that it is not socially acceptable in the Czech Republic for women to seek legal aid. In this context, women’s awareness that legal aid services are available at little or no cost remains low, let alone their understanding of how legal aid services can help them. Experts add that women may not know where to find legal assistance, and generally see court processes as too time-consuming. There is a general per- ception that legal aid providers lack gender sensitivity (there are very few female legal aid providers) and as a result, women may be reluctant to share intimate information related to their case. For all of these reasons, experts note that wom- en generally prefer to resolve issues through the informal justice system or out- side the court system, where legal aid has no role. 298

299 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia The justice system has specialized courts and judges specifically dedicated Access to legal aid to handling cases involving child victims, child witnesses or suspected and for children accused children. >75% <10% In less than 10% of cases when In 2013, in more than 75% of cases children are suspected or charged where a child was found culpable, with a criminal offence, the case is an alternative to imprisonment was diverted from the formal justice imposed system without trial (through mediation, a warning or an apology) Informal justice mechanisms allow a lawyer to provide assistance in the medi- Legal aid and informal ation/adjudication process in formal mediation/alternative dispute resolution justice systems processes, and there are mechanisms that allow cases to be referred between the formal and informal justice systems. Legal aid service providers can work across the different systems. To qualify for formal mediation/alternative dispute resolution processes, legal aid providers must have a law degree. 299

300 Global Study on Legal Aid – Country Profiles Czech Republic Eastern Europe & Central Asia Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a legal aid provider arrives. the quality of legal aid services There are no means of assessing if a legal aid provider is unprepared or unqualified. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient. The bar association is formally responsible for monitoring the quality of legal aid Monitoring services provided and conducting investigations on the basis of complaints, but and data collection only if legal aid is delivered by barristers. on the quality of legal aid services The data for monitoring the quality of legal aid services is collected by review- ing complaints from legal aid recipients about a legal aid provider’s actions. 300

301 Georgia Eastern Europe & Central Asia Georgia 4.504 million Population Unitary government system 100% 100% 53% 47% Rural population Female literacy rate Male literacy rate Urban population $3,720 0.962 GNI per capita Gender Development Index 0.975 0.95 0.925 $1,045 $4,126 $12,736 0.9 LOW MID/HIGH HIGH MID/LOW LOW MID HIGH MID/HIGH MID/LOW -13.6% 0.652 0.754 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

302 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia Legal Aid at a Glance in Georgia $0.52 Within the past 5 years 2015 Annual expenditure When was the last assessment The latest reform of the legal aid on legal aid per capita in 2013 of legal aid needs conducted system was carried out in 2015 People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 8 A lot pay a debt, during the past 3 years Some 46 Citizen survey, WJP Rule of Law Index 2015 A Little 32 13 No Trust 22% 3 3 Sample size: 49 100 % 0% Challenges in accessing legal aid Priority areas for support Shortage of lawyers, especially outside urban areas h Legislative drafting advice Development of action plans/policies h In criminal cases, people sometimes think that legal aid  lawyers are working as part of the police, prosecutor or judicial  Development of quality criteria for legal aid providers agencies, and as such are more loyal to the State than to legal Establishing paralegal systems  Institutional support aid recipients Training People may not know where to find legal assistance and may h Awareness-raising activities on the right to legal aid not be aware that legal aid services are available at little or no  cost and legal aid services available People may prefer to resolve issues through the informal h justice system or outside the court system, where legal aid has no role 302

303 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in 2007, with the adoption of the Law Right to legal aid “On Legal Aid” and the creation of a Legal Aid Service under the auspices of the Ministry of Justice. The right to legal aid is guaranteed in: Constitution 2 In 2014, legislative amendments were adopted to provide the Legal Aid Service Separate law on legal aid 2 with complete institutional independence from the Executive, with a view to Civil procedure code 2 ensuring the full professional independence of Legal Aid Service lawyers. The 2 Implementing regulations for the law on legal aid Ministry of Justice, the parliament, international donors and civil society played Criminal procedure code 2 an instrumental role in introducing this reform. Administrative Procedure Code 2 2 Code on Administrative Delicts The most recent reform of the legal aid system took place in 2015, when the Code on Detention 2 mandate of the Legal Aid Service was extended beyond criminal cases, to also 2 Law “On Combatting Domestic cover civil and administrative cases. Violence, Protection of and As- sistance to Victims of Domestic State-funded legal aid is available at both national and sub-national levels. Violence” For civil, administrative and criminal cases, legal aid is provided in the form of le- Services included gal advice, legal representation and assistance with the execution of legal docu- as part of legal aid ments. In civil cases, legal assistance before courts is also provided. The legislation however does not specify whether free legal aid is guaranteed for mediation or arbitration. Specialized legal aid services are provided by the State, mainly for children, refugees and asylum seekers, and victims of domestic violence. The process for obtaining legal aid is initiated by the Legal Aid Service which Process for obtaining oversees the appointment of legal aid providers based on the notification from legal aid a State justice actor or applicant for legal aid. In criminal cases, mandatory legal counsel is provided to all by the criminal code. In civil and administrative cases, a person must meet any of the ‘insolvency cri- teria’ established by the government, which are defined according to a point- based system. When applying for legal aid services, it is not necessary for a per- son to provide any documentation: the Legal Aid Service can simply access the database of socially unprotected citizens administered by the Ministry of Labour, Healthcare and Social Protection, and check the status of the applicant. Even if a person is not registered in the database of the socially unprotected persons, if s/he is unable to pay for legal services, she can obtain services from the public defender. 303

304 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia A public information campaigns to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State more than to legal aid three years ago. International actors have also supported awareness-raising ef- forts in recent years. Independent national experts estimate that the general population is ‘somewhat knowledgeable’ about legal aid services. Delivery model The ‘Legal Aid Service’ has chief responsibility for the management of legal aid. It Legal aid authority is not subordinated to any branch of government and is only accountable to the Parliament. The Service consists of a central coordinating body and regional offices. A Legal Aid Council was also established to guarantee the independence and transparency of the Legal Aid Service. The Council is constituted by nine members which represent the National Bar Association, the Office of the Ombudsman, the Ministry of Justice, the High Council of Justice, the Legal Aid Service itself, as well as NGOs and academia. The Council elects the Director of the Legal Aid Service, passes some regulations on legal aid services, approves the development strategy of the Service, monitors its activities, etc. Legal aid services for criminal, civil and administrative cases are provided Organisation through the Legal Aid Service, and through pro bono schemes. Members of the of legal aid services Georgian Law Firm Association have committed to take up at least three cas- es pro bono per year. Provision of pro bono legal aid services is also seen as a means for junior lawyers to acquire experience. Finally, NGOs also provide free legal aid services, notably GYLA, Article 42 and others. All applications for legal aid services are filed at the level of the Regional Bureaus Mechanism for of the Legal Aid Service, and are reviewed by the Bureau within two days. Cases assigning legal aid are distributed among lawyers in alphabetic order of lawyers’ surnames. providers 304

305 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia The Legal Aid Service has eleven Regional Bureaus (in the bigger cities) and sev- Accessing legal aid in en Consultation Centers (in administrative centers in smaller cities, in mountain- urban vs. rural areas eering regions and in regions populated by ethnic minorities). In order to in- crease the availability of legal aid services in remote areas, mobile teams of Legal Aid Service lawyers carry out field visits and provide legal consultations where the Service does not have an office. To this end, since 2015, the Legal Aid Service cooperates with the Agency for the Development of Governmental Services to provide legal consultations to villagers in special rural centers. Service providers Lawyers 1/19,166 1/1,140 and other providers Licensed practicing Full-time lawyers legal aid lawyers /people /people University-based NGOs Paralegals law clinics Also provide free legal aid While not officially Students are allowed to services recognized, paralegals are provide primary legal (e.g. GYLA, Article 42 allowed to provide legal aid aid, to help prepare services in both criminal and others) legal documents, and to and civil cases, including represent litigants in civil legal advice on a one-time law hearings or two-time basis, legal representation before a prosecutor, court or tribunal, provision of legal information in police precincts or prisons, general assistance in navigating the justice system, and assistance in executing legal documents 305

306 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must also be members of the national bar. Paralegals must have completed a special training course, as well as an intern- ship or apprenticeship with a lawyer. Legal aid providers are required to engage in continuing education or skills training, and the State does allot funds to this effect. Both lawyers and consul- tants working for the Legal Aid Service regularly undergo trainings, organised by the Legal Aid Service itself as well as by the bar association. Finances Primary legal aid services are available free of charge by the Legal Aid Service. Costs to recipients Legal aid services are free of charge for those who meet eligibility criteria. Legal aid in the annual justice budget $0.52 Legal aid budget per capita in 2016 30% 50% 13% 2010 - 2013 2015 - 2016 2013 - 2015 Annual legal aid budget increased by 13% from 2010 to 2013. It was further increased by 50% between 2013 and 2015, and again by nearly 30% between 2015 and 2016. The national budget for legal aid is determined by the parliament, the Ministries of Justice and Finance, and the Legal Aid Service. Legal aid is a separate component of the annual justice system budget. In 2014, after receiving full institutional independence, the Legal Aid Service was pro- vided with additional budget guarantees that the annual budget of the Service cannot be cut without the consent of the Legal Aid Service. In 2015, due to the significant expansion of the mandate of the Legal Aid Service in civil and admin- istrative cases, the budget was increased by 50%. 306

307 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia While the cost of specialized legal aid services is covered by the State, additional services, such as independent investigations, experts, psychological/social work support, clerical assistance, are not. In-house counsels work full-time for State institutions and receive a monthly sal- Payments to legal ary. Freelance lawyers are hired in specific cases and receive a fixed fee for each aid providers procedural action taken. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges and victims of crime. obliged to provide ‘mandatory defence’ — irrespective of whether The State is or not ‘insolvency criteria’ apply — when the accused is a minor, does not speak 25- the language of the criminal proceedings, cannot personally exercise his/her right for protection due to physical or psychological disabilities, potentially faces life imprisonment, refuses to appear before the law enforcement agency or was 50% not physically present in the courtroom, amongst other circumstances. Proportion of criminal court cases In a number of cases, to receive legal aid, ‘mandatory defence’ does not apply (2013) and a person must fall under the insolvency criteria. This is the case for the pro- tection of any other accused in criminal cases (i.e. who does not qualify for ‘man- datory defence’), for the protection of domestic violence victims, for disciplin- ary proceedings cases against detainees, and for administrative offence cases, which entail administrative arrest. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- 43% ment representative restricts the suspect’s/defendant’s freedom. It is prohibited by law for the police to interview someone in the absence of a lawyer, unless the Proportion of criminal court cases person agrees to waive this right. for which State-funded legal aid was provided (2013) In criminal cases, legal aid institutions aim to ensure that the same provider rep- resents the accused/suspect at all stages of the case. 307

308 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that there is no noticeable differ- ence in the quality of services provided by legal aid lawyers and private law- yers. Furthermore, experts note that ‘a well-prepared /highly skilled lawyer, ‘the judge’s objective analysis of evidence and testimony’ and ‘the strength of the evidence’ are amongst the most influential factors in reaching a dismissal of charges or acquittal’. Pre-trial detention Resolved pursuant Acquitted after trial imposed to a plea agreement, procedural agreement or expedited trial Cases which did not receive legal aid (2013) 0.2% 23% 80% Cases which received legal aid (2013) 16% 0.09% 93% How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence 57% People who believe that the police Bias against marginalized people always or often respects the basic Inadequate ADRs rights of suspects 3 3 WJP Rule of Law Index 2015 Very serious Not very serious 308

309 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to anyone who meets the ‘insolvency crite- ria’, and will also depend on the case’s gravity, complexity, or case type, as iden- Estimated demand for legal aid tified in the law. services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 50% Marital issues Property issues Child custody issues From respondents Labor disputes Administrative matters matters and tort claims Since April 2015, the Legal Aid Service provides legal aid services free of charge for representation in court of cases related to family litigation (divorce, alimony, 50% etc.), litigation concerning inheritance, social care and pension, rights of inter- From complainants nally displaced people, healthcare and patients’ rights, social security of veterans and families of deceased conscripts, of victims of political repression, and of per- sons with disabilities. For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with the drafting or filing of a complaint or a response, to gain access to State services, and to provide victims of violence with protective ser- vices. Legal aid can also be provided throughout proceedings. Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class action cases, but there is public demand for such initiatives to address discrim- ination, health issues, environmental protection, labour rights and consumer rights. 309

310 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious According to national experts, women may not always be aware that legal aid Women’s access services are available at little or no cost, and may not know where to find legal to legal aid services assistance. Female victims of violence (including victims of sexual and gender-based vio- lence) do receive legal aid services in all legal proceedings, as well as court sup- port services, such as interpretation and translation of documents. The justice system has specialized courts, judges, lawyers /paralegals, prosecu- Access to legal aid tors and police units specifically dedicated to handling cases involving child vic- for children tims, child witnesses or suspected and accused children. When representing children, legal aid providers often reach out to parents, so- cial workers and other childcare professionals for support to assist the child throughout proceedings. When comparing criminal cases where children are represented by legal aid providers, and cases where children are represented by private lawyers, in- 20- dependent national experts observe that the use of diversion, alternatives to pre-trial detention, and alternatives to imprisonment are more frequent when children are represented by legal aid lawyers. Experts also note that legal aid 35% providers specialized in children’s rights achieve the use of diversion and alter- For 20-35% of cases when children natives to imprisonment more often than non-specialized legal aid providers. are suspected or charged with a criminal offence, the case is diverted from the formal justice system without trial (e.g. through mediation, 310 a warning, or an apology) (2013)

311 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia 50-75% 20-35% In 20-35% of cases where a child When State-funded legal aid was found culpable, an alternative was provided, an alternative to to imprisonment was imposed. imprisonment was imposed (2013) in 50-75% of cases (2013) Informal justice proceedings typically handle marital or family disputes, land Legal aid and informal and property disputes, and inheritance. justice systems National experts explain that people prefer to resolve disputes through informal justice proceedings because they take less time and people understand better how they work. People are also more confident that they will lead to a negotiat- ed outcome that is acceptable to all parties. Informal justice mechanisms allow a lawyer to provide assistance in formal me- diation and alternative dispute resolution processes, and there is a mechanism that allows cases to be referred between the formal and informal justice systems. 311

312 Global Study on Legal Aid – Country Profiles Georgia Eastern Europe & Central Asia Quality safeguards To guarantee unhindered access to legal aid in criminal cases, the Legal Aid Accountability for Service has established a roster system based on lawyers’ time schedules, which the quality of legal allows for qualified legal aid services to be provided at any time of the day aid services throughout the country. If a person has a right to legal aid, but no legal aid provider is available, or the provider is unprepared or unqualified, the proceedings must cease until a qual- ified legal aid provider arrives. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he has too many cases, or if s/he has a conflict of interest with the legal aid recipient. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the Department of Monitoring and Analysis in the Legal Aid Service, which eval- and data collection uates cases that have been closed. This Department will soon start monitoring on the quality legal aid services by conducting a thorough review of randomly selected cases of legal aid services and applying a grading system for selected criteria. 312

313 Kazakhstan Eastern Europe & Central Asia Kazakhstan 17.29 million Population Unitary government system 100% 100% 53% 47% Rural population Female literacy rate Male literacy rate Urban population $11,850 1.002 GNI per capita Gender Development Index $1,045 $4,126 $12,736 0.975 0.95 0.925 0.9 MID/LOW LOW HIGH MID/LOW MID/HIGH MID LOW HIGH MID/HIGH -11.9% 0.694 0.788 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

314 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia Legal Aid at a Glance in Kazakhstan $0.05 Within the past 5 years 2013 Annual expenditure The most recent reform of When was the last assessment on legal aid per capita in 2013 of legal aid needs conducted the legal aid system led to the adoption of the Law on Guaranteed Legal Aid in 2013 People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 2 A lot pay a debt, during the past 3 years 26 Some Citizen survey, WJP Rule of Law Index 2015 A Little 52 No Trust 21 57% 3 3 Sample size: 44 100 % 0% Priority areas for support Challenges in accessing legal aid  h Legislative drafting advice Lack of legal aid lawyers and low pay for legal aid work  Development of action plans/policies h Reluctance by the bar association to allow paralegals to fill the gap of available lawyers Development of quality criteria for legal aid providers  Establishing paralegal systems  h People may not know where to find legal assistance, and may Institutional support  not be aware that legal aid services are available at little or no Training  cost People may prefer to resolve issues through the informal h justice system or outside the court system, where legal aid has no role h Covering the costs of police, prosecutors and judges tends to be prioritized over spending public funds on lawyers 314

315 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia Legal framework The right to legal aid is recognized by law since the country’s independence, in Right to legal aid 1991. The latest substantial reform of the legal aid system led to the adoption of the Law on Guaranteed Legal Aid in 2013, with strong involvement by the The right to legal aid is guaranteed in: Ministry of justice, international donors and the bar association. Constitution 2 2 Separate law on legal aid Guaranteed State-funded legal aid is available at national, regional and local 2 Civil procedure code levels. 2 Administrative law 2 Criminal procedure code 2 Implementing regulations for the law on legal aid Law on advocacy 2 Legal aid is mainly provided in the form of legal information, legal advice, le- Services included gal representation and defence, and enforcement of judicial decisions. Legal aid as part of legal aid providers also provide general assistance in navigating the justice system, and in executing legal documents. Specialized legal aid services are provided by the State for specific population groups, including children, persons with disability, the elderly and migrants. Additionally, civil society organisations provide legal aid to women, refugees, asy- lum seekers and stateless persons, LGBTs, as well as ethnic or religious minorities. Legal aid is provided upon request from the person who wants legal aid from Process for obtaining the bar association. The determination is automatic if the case or legal aid re- legal aid cipient qualifies for legal aid services under the law, in which case no proof is necessary. To receive legal aid, a person must prove eligibility by providing supportive doc- umentation, as requested by the respective authorised body (e.g. proving status as recipient of welfare, demonstrating family hardship, etc.) The State has only recently started to carry out public information campaigns to Awareness of the right raise awareness about the right to legal aid and how to access legal aid servic- to legal aid es. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about the right to legal aid services. 315

316 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia Delivery model The Ministry of Justice and National Bar association have chief responsibility for the Legal aid authority management of legal aid, at national, regional and local levels. Legal aid services are provided through various schemes: (1) non-governmen- Organisation tal legal service institutions and law firms may enter into a contract with the of legal aid services State, or with the bar association, to provide legal aid in exchange for remuner- ation by the State; (2) some legal aid lawyers are employed as staff members by public defender institutions; (3) some lawyers and paralegals are employed by civil society organisations; (4) some pro bono volunteers work in coordina- tion with the bar association and the Ministry of Justice (also as a means to ac- quire experience); and (5) legal aid services are also provided through notaries and bailiffs. To request the services of a legal aid provider, the courts, prosecutors and police Mechanism for can either (1) contact the bar association, which maintains and coordinates ap- assigning legal aid pointments, or (2) contact lawyers from rosters that they maintain themselves. providers State-funded legal aid services are available in rural areas, but the quality of Accessing legal aid in legal services tends to be higher in urban areas. This can be explained by the urban vs. rural areas fact that legal aid providers in urban areas have more independence to chal- lenge actions of other justice actors (with whom they are not necessarily ac- quainted socially). 316

317 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia Service providers Lawyers 1/3,842 N/A and other providers Licensed practicing Full-time /people legal aid lawyers lawyers /people University-based Paralegals Civil society law clinics Are not officially recognized organisations as providers of legal aid State-funded legal aid providers must have a law degree and show proof of Qualifications required passing a professional examination, be a member of the national bar, have com- pleted an apprenticeship or internship with a practicing lawyer, be in a contrac- tual relationship with the agency that oversees the administration of legal aid, and be registered in a State-authorised roster of legal aid providers. There is no formal requirement for paralegals to complete a special training course. Legal aid providers are required by law to engage in continuing education or skills training, but the State does not allot funds to this effect. Finances Legal aid services for both criminal and civil cases are free of charge for those Costs to recipients meeting eligibility criteria. Primary legal aid services are provided for free by bar associations, which have established a hotline that individuals can call to receive advice. Some civil society organisations have established legal advice centres which also provide primary legal aid services for free. 317

318 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia Legal aid in the annual justice budget $0.05 Legal aid budget per capita in 2013 11% The annual legal aid budget 50% increased by 11% from 2010 to 2013 Legal aid budget allocated criminal cases to Legal aid is treated as a separate component of the annual justice system bud- get. The budget for legal aid is determined by the Ministries of Justice and Finance, the bar association, and the parliament. Specialized legal aid services for disadvantaged populations are funded by 50% the State with substantial contributions from private actors and international Legal aid budget allocated donors. The State covers the costs of additional services such as independent to civil cases investigation, experts, psychological or social work support, etc. Legal aid providers generally receive a fixed fee for each action they take on a Payments to legal case, or they are paid on an hourly basis for actions that the state has identified aid providers as a basis of payment. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime and witnesses. 318

319 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia obliged The State is to provide provide legal aid to persons who meet a finan- cial threshold, children, persons with physical, intellectual and mental disabilities, persons whose mother tongue is not the language of official proceedings, per- sons who potentially face a prison sentence of ten years or more or death pen- alty, persons placed in pre-trial detention as a preventive measure, and persons forcefully required to undertake a judicial psychological examination (further considerations are outlined in the law). 5.9% At what stage of a criminal case? Proportion of criminal court cases (2013) Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, and during questioning of a potential suspect/defendant before formal charges are filed. In practice, however, legal aid is rarely provided during these initial stages, but rath- er from the moment charges are officially filed, during trial, for any appeal or cas- sation, and for consideration of probation, or social rehabilitation/reintegration matters after release from prison. 25% In criminal cases, legal aid institutions aim to ensure that the same provider rep- resents the accused/suspect at all stages of the case. People who believe that the It is prohibited for the police to interview someone in the absence of a law- police always or often respects the basic rights of suspects yer, unless the person is interviewed as a witness, or s/he has agreed to be in- WJP Rule of Law Index 2015 terviewed without a lawyer. This may be problematic as sometimes, the police determines the person to have a right to legal aid only after the witness has in- criminated him/herself. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are less likely than 56% private lawyers to perform actions such as ‘giving advice to the suspect/defen- Criminal cases which resulted dant in private before any contact with the state justice official’ or ‘conducting in convictions (2013) investigation to establish doubt about the suspect/defendant’s guilt even if this person may be guilty’, amongst others. Furthermore, experts identify ‘bribery/corruption' and ‘the hiring of a private lawyer paid by the suspect/defendant’ to be amongst the most influential fac- tors in reaching a dismissal of charges or acquittal in criminal cases. 1% Criminal cases which were acquitted after trial (2013) 319

320 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 81% Excessive pre-trial detention Proportion of convicted cases which Delay of cases received a prison sentence (2013) Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption 28% Judicial independence Proportion of cases where pre-trial detention was imposed (2013) Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to anyone who qualifies for it, with a particu- lar focus on children, persons with physical, intellectual or mental disabilities, ref- ugees, and persons whose mother tongue is different from the language used in official proceedings. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Property issues Marital and child Contractual disputes custody issues Labor disputes Claims for State services or disputes with State agencies For what actions is a party eligible for legal aid? Under the law, primary legal aid is available to all, as well as legal aid to assist with the drafting of a complaint or a response, during trial, when drafting mo- tions, and for any appeal or cassation. 320

321 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia Estimated demand for legal aid Public interest litigation / class action cases: services in civil cases State-funded legal aid is not provided for public interest litigation and class ac- tion cases, but there is public demand for such initiatives to address discrim- ination, labour rights, consumer rights, environmental protection, and health. 30% How serious are the following problems in influencing people’s decisions From respondents on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid 70% Location of Courthouses Duration of cases From complainants Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious Although women have a constitutional right to legal aid just like any other per- Women’s access son, there are no specialized legal aid services for women. to legal aid services According to national experts, women may not be aware that legal aid servic- es are available at little or no cost, and may not know where to find legal assis- tance. Experts add that women sometimes lack confidence in the quality of le- gal aid services provided to them. For all of these reasons, women may prefer not to seek out legal assistance, also because they see court processes as too time-consuming. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings; court support services, such as interpretation and translation of documents, are also provided. 321

322 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia The justice system has specialized courts and judges, specialized police officers/ Access to legal aid units, and specialized lawyers and paralegals to represent child victims, child for children witnesses or suspected and accused children. When representing children, legal aid providers routinely reach out to parents, child protection service practitioners and psychologists for support to assist the child throughout proceedings. In criminal cases, alternatives to pre-trial detention and to imprisonment are more often achieved when children are represented by legal aid providers than in cases where they are represented by private lawyers or not represented at all. 35- 50% 81% In more than 81% of cases where Between 35-50% of cases where children are suspected or charged with a criminal a child was found culpable, an offence are diverted from the formal alternative to imprisonment was imposed (2013) justice system without trial (e.g. through mediation, a warning, or an apology) (2013) People do not resolve disputes through informal justice proceedings. Legal aid and informal justice systems 322

323 Global Study on Legal Aid – Country Profiles Kazakhstan Eastern Europe & Central Asia Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a qual- the quality of legal ified legal aid provider arrives. aid services A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he has too many cases, or if there is a conflict of interest with the legal aid recipient. The Ministry of Justice and the bar association are formally responsible for mon- Monitoring itoring the quality of legal aid services. In order to monitor the quality of le- and data collection gal aid services, data is collected through the review of complaints by legal aid on the quality recipients, and through the conduct of satisfaction surveys filled by court users, of legal aid services including legal aid recipients. No data is available on the number of criminal or civil cases filed in court where State-funded legal was provided. 323

324 Lithuania Eastern Europe & Central Asia Lithuania 2.929 million Population Unitary government system 100% 100% 67% 33% Rural population Female literacy rate Male literacy rate Urban population $15,430 1.030 GNI per capita Gender Development Index 0.975 0.95 0.925 $1,045 $4,126 $12,736 0.9 MID/LOW MID/HIGH LOW MID/LOW MID/HIGH MID LOW HIGH HIGH -10.1% 0.754 0.839 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.7 0.8 0.55 LOW LOW VERY HIGH MID HIGH MID HIGH VERY HIGH

325 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia Legal Aid at a Glance in Lithuania $1.74 Never conducted 2014 The most recent reform Annual expenditure When was the last assessment of the legal aid system on legal aid per capita in 2013 of legal aid needs conducted took place in 2014 Priority areas for support Challenges in accessing legal aid Legislative drafting advice h Low pay of lawyers for legal aid work h General perception that it is more important to cover the Development of action plans/policies cost of police, prosecutors and judges than to spend public Development of quality criteria for legal aid providers  funds on lawyers Establishing paralegal systems People may not have confidence in the quality of legal Institutional support h  Training aid services  Facilitating experience-sharing and networking of legal aid administrations across the world Establishing international platforms for mutual learning  and exchange of good practices amongst legal aid administrations across the world 325

326 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia Legal framework The right to legal aid was officially recognized during the Soviet era. Right to legal aid The most recent reform of the legal aid system took place in 2014, when The right to legal aid is guaranteed in: the Law on State-Guaranteed Legal Aid came into force. This law establishes a 2 Separate law on legal aid ‘one-stop model’ for persons seeking secondary legal aid, strengthens quality 2 Implementing regulations for controls over the quality of legal aid services provided, and promotes concilia- the law on legal aid tory mediation as an alternative to legal proceedings. 2 Criminal procedure law 2 Civil procedure code State-funded legal aid is available at the national level only. 2 Administrative law For both criminal and civil cases, legal aid is provided in the form of legal advice, Services included legal representation, legal assistance, and legal information. Legal aid lawyers as part of legal aid also provide general assistance in navigating the justice system. In civil cases specifically, legal aid is provided to assist with the execution of legal documents. There are no specialized legal aid services for specific disadvantaged popula- tion groups. Legal aid is provided upon request from the person who wants legal aid, as well Process for obtaining as upon request from the police, a prosecutor or a court. legal aid In both civil and criminal cases, a person must prove her/his eligibility by proving status as a recipient of welfare or state subsidies, by demonstrating fam- ily hardship (e.g. multiple children, single parent, family member disability, etc.), by providing evidence of low income or of membership of a protected group (such as migrants, children, ethnic or religious minority, etc.). It may also be de- termined by relevant agencies that the interests of justice require the provision of legal aid. In criminal cases specifically, no proof of eligibility is necessary in cases where the State is obliged to provide legal aid under the law. Entitlement to legal aid in criminal cases also depends on the gravity or complexity of the matter requir- ing assistance. In civil cases specifically, a person may be requested to provide a proof that his/her legal aid claim has merit. 326

327 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15, and to legal aid provided specific contact details of relevant offices to go to for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Ministry of Justice which oversees and coordinates the legal aid appoint- ment mechanism. Legal aid services in both criminal and civil cases are organised through the Organisation State-Guaranteed Legal Aid Coordination Council. Civil servants in municipal of legal aid services institutions work in parallel to State-funded private practitioners who take as- signments from the legal aid administration. Paralegals are allowed to provide legal aid under part-time individual contracts signed with the legal aid administration. In criminal cases, when the physical presence of a legal aid lawyer in court is Mechanism for required or when a suspect, accused or convict requests a legal aid lawyer, assigning legal aid such lawyer shall be selected by a coordinator (a lawyer appointed by the Bar providers Association to coordinate the provision of secondary legal aid in criminal mat- ters) upon notification received from a pre-trial investigation officer, a prosecu- tor or a court. It usually takes about two hours for a legal aid provider to appear after notice is given that legal aid is needed in a criminal case. State-funded legal aid services are available in both rural and urban areas. While Accessing legal aid in the quality of legal aid services depends on each individual legal aid provider, urban vs. rural areas legal aid lawyers in urban areas have more independence than those in rural ar- eas to challenge the actions of other justice actors. 327

328 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia Service providers Lawyers 1/1,387 1/41,843 and other providers Licensed practicing Full-time legal aid lawyers lawyers /people /people University-based Paralegals law clinics Are not allowed to provide legal aid Although the set of qualifications required for a particular case depends on the Qualifications required type of case, in general, legal aid providers must have a law degree and must show proof of passing a professional examination (bar examination). They must also be members of the bar association, have completed an internship with a practicing lawyer, and be registered in a State-authorised roster of legal aid providers. The State imposes a requirement (and partially allots funds) to engage in con- tinuing education and/or skills training on all practicing lawyers. The same re- quirement is imposed by the Lithuanian Bar on its members. Finances Primary legal aid services are available free of charge to persons meeting eli- Costs to recipients gibility criteria at the administrative offices of legal advice centres in cities, and at the offices of civil society organisations. For secondary legal aid, there exists a sliding scale of payment, based on the property and income of the person seeking legal aid. 328

329 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia Legal aid in the annual justice budget $1.74 Legal aid budget per capita in 2013 Legal aid is a separate component in the annual justice budget. The nation- al budget for legal aid is determined by the Ministry of Justice on the basis of 13% a proposal submitted by the State-Guaranteed Legal Aid Coordination Council. While there are no separate funding mechanisms to cover the cost of special- The annual legal aid budget increased by 13% from 2010 to 2013 ized legal aid services provided to specific population groups (such as women, children, etc.), additional services, such as independent forensic experts, are cov- ered by the State. In both criminal and civil cases, legal aid providers who work full-time in insti- Payments to legal tutions funded by the State receive a fixed remuneration per month for a fixed aid providers Ex officio private lawyers who take up legal aid cases number of working hours. are paid on a case-by-case basis. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, and victims of crime. The State is obliged to provide legal aid to persons who meet a financial thresh- old, children, persons with physical or intellectual/mental disabilities, persons whose mother tongue is not the language of official proceedings, and persons who face a potential prison sentence. Legal aid is also provided when it is re- quired by the interests of justice or due to the case’s gravity or complexity. 329

330 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia At what stage of a criminal case? Under the law, legal aid should be provided from the moment a State agen- 2.5% cy begins consideration of whether to impose pre-trial detention or restrictive measures, or at least when charges are officially filed. Legal aid is also provided Criminal cases which were acquitted after trial (2013) during trial and for any appeal or cassation. To what extent are legal aid services in criminal cases seen as effective? Comparing the services of legal aid providers to services of private lawyers, in- dependent national experts estimate that legal aid providers are less likely than private lawyers to perform action such as ‘presenting arguments in favour of a 10% suspect’s/defendant’s release pre-trial’, and ‘pointing to weaknesses in the evi- dence presented against the suspect/defendant, even if the defendant may be Criminal cases which had pre-trial detention imposed (2013) guilty’. National experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 35% Criminal court cases which were resolved pursuant to a plea agreement, procedural agreement or expedited trial <10% 31% Proportion of criminal court cases In 2013, State-funded legal aid was provided in 31% of criminal cases Who is eligible? Legal aid in civil cases Legal aid in civil cases is provided to persons who meet a financial threshold, children, and persons with physical or intellectual/mental disabilities, as long as a case satisfies a merit test. 13.5 In 2013, the number of civil and administrative cases filed in courts was 13.5 higher than the number of criminal cases 330

331 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 20% Tort claims Property issues Marital disputes and child custody issues From respondents Contractual disputes Labor disputes For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- 80% fered to assist with drafting and filing complaints and responses, drafting motions, and protecting victims of violence. Legal aid can also be provided From complainants throughout mediation, pre-trial hearings, and during trial, as well as for any ap- peal or cassation in national and international tribunals. Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for public interest litigation/class action to address discrimination, labour rights, consumer rights, environmental protection, and health issues. However, staff lawyers of the institutional legal aid provider do not coordinate to uniformly challenge common violations of national and international due process rights 5% and human rights. In 2013, State-funded legal aid was provided in 5% of civil cases filed in court According to national experts, one major problem faced by women is that there Women’s access are no specialized legal aid services for women, except for female victims of vio- to legal aid services lence (including victims of sexual and gender-based violence) who receive legal aid services in all legal proceedings, as well as court support services, such as in- terpretation and translation of documents. Another significant factor impeding women’s access to legal aid is that the means test for eligibility to legal aid often considers overall household income rather than the women’s income specifically, which tends to be considerably lower. 331

332 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia National experts add that women may not always understand how legal aid ser- vices can help them and may lack confidence in the quality of legal aid services provided to them. Experts also note that women sometimes see legal aid provid- ers as lacking gender sensitivity, which makes it difficult for them to confide in a legal aid lawyer and share intimate information related to a case. There are specialized courts, judges, prosecutors and police units for child Access to legal aid victims, child witnesses and suspected or accused children. for children When representing children, legal aid providers often reach out to parents, psychologists and other childcare professionals for support to assist the child throughout proceedings. Diversion away from judicial proceedings is never used in criminal cases involv- ing suspected or accused children. National experts observe that when children are represented by legal aid pro- viders in criminal cases, alternatives to pre-trial detention and to imprisonment are more often achieved than in cases where children are represented by pri- vate lawyers. 75% >50% >75% In more than 50% of cases when This proportion stayed the same In 2013, in more than 75% of cases children are suspected or charged where a child was found culpable, (75%) when State-funded legal aid with a criminal offence, the case is was provided an alternative to imprisonment was diverted from the formal justice imposed system without trial (e.g. through mediation, a warning, or an apology) Informal justice proceedings are typically used to resolve marital or family issues, Legal aid and informal child custody issues, land and property disputes, inheritance disputes, as well as justice systems disputes related to informal contracts and labor agreements. According to inde- pendent national experts, people prefer to use informal justice proceedings be- cause they think that such proceedings are more likely to lead to a negotiated outcome that is acceptable to all parties. 332

333 Global Study on Legal Aid – Country Profiles Lithuania Eastern Europe & Central Asia Informal justice mechanisms allow a lawyer to provide assistance in formal me- diation/alternative dispute resolution processes. There are also mechanisms al- lowing for cases to be referred between the formal and informal justice systems. Quality safeguards If a person receives legal aid services, but the legal aid provider is unprepared or Accountability for unqualified, the proceedings are postponed or a replacement legal aid provid- the quality of legal er is asked to represent the party. This can sometimes be problematic as there aid services are no formal means of assessing a legal aid provider’s qualifications or level of preparedness. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient due to having too many cases, or due to incompatibility or conflict of interest with the legal aid recipient. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the Ministry of Justice and the bar association. Data is collected through assess- and data collection ments by justice actors, through the review of complaints lodged by legal aid on the quality recipients, and through satisfaction surveys filled by legal aid recipients. of legal aid services 333

334 Moldova Eastern Europe & Central Asia Moldova 3.556 million Population Unitary government system 100% 99% 45% 55% Rural population Female literacy rate Male literacy rate Urban population $2,560 1.003 GNI per capita Gender Development Index $1,045 $4,126 $12,736 0.975 0.95 0.925 0.9 LOW MID/HIGH HIGH MID/LOW MID/HIGH MID LOW HIGH MID/LOW -10.8% 0.618 0.693 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH HIGH VERY HIGH VERY HIGH MID MID

335 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Legal Aid at a Glance in Moldova Within the past 5 years $0,32 2011-2016 Annual expenditure When was the last assessment Moldova is currently reforming of legal aid needs conducted on legal aid per capita in 2013 its national legal aid system in (see “Met and Unmet Legal Needs in Moldova”, accordance with the Justice Sector http://www.cnajgs.md/uploads/asset/file/en/349/ Reform Strategy 2011-2016 Legal_Needs_Moldova_en.pdf ) People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 11 pay a debt, during the past 3 years Some 34 Citizen survey, WJP Rule of Law Index 2015 A Little 30 No Trust 25 47% 3 3 Sample size: 98 0% 100 % Challenges in accessing legal aid Priority areas for support The population does not know enough about legal aid assistance in h Legislative drafting advice civil and administrative cases and lacks understanding of how legal aid Development of action plans/policies services can help them  Development of quality criteria for legal aid providers The lack of an online database to verify a legal aid applicant’s ability to pay h Establishing paralegal systems  for services complicates the process of obtaining legal aid assistance Institutional support  Legal aid providers are not distributed evenly across the country, and h  Training there is a limited number of paralegals and NGOs specializing in the provision of primary legal aid. People perceive State-provided legal aid to be of lower quality than the h assistance provided by private lawyers; furthermore, legal aid lawyers are perceived to be more loyal to state agencies than to legal aid recipients h Covering the costs of police, prosecutors and judges is generally prioritized over spending public funds on lawyers 335

336 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in 1994, when the Parliament adopt- Right to legal aid ed the current Constitution of Moldova. Article 26 of The constitution guaran- ex officio . tees the right to be assisted by a lawyer, either chosen or appointed The right to legal aid is guaranteed in: Constitution 2 Moldova is currently reforming its national legal aid system in accordance Separate law on legal aid 2 with the Justice Sector Reform Strategy 2011-2016 and its Implementation 2 Implementing regulations for Plan, adopted by the Parliament. The overall objective of this Reform Strategy the law on legal aid Civil procedure code 2 is to build a justice system which is affordable, efficient, independent and ac- Criminal procedure law 2 countable to society, while meeting European standards on the rule of law and 2 Administrative law human rights and fostering people's trust in justice. 2 Law on pre-trial detention State-funded legal aid is available at national, regional and local levels. For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, legal assistance (before national courts), and provision of as part of legal aid legal information. Legal aid lawyers also provide general assistance in navigat- ing the justice system. Specialized legal aid services are provided by the State for disadvantaged pop- ulation groups, including persons with physical and mental disabilities, children, migrants, refugees, asylum seekers, stateless persons and internally displaced persons. Legal aid is provided upon request from the person who wants legal aid and Process for obtaining upon request from the police or prosecutor. The determination is automatic legal aid if the case or legal aid recipient qualifies for legal aid services. In both criminal and civil cases, a person must prove her/his eligibility by dem- onstrating family hardship (e.g. multiple children, single parent, family member disability, etc.), providing evidence of low income, or membership of a protect- ed group (such as migrants, children, displaced persons, refugees, etc.) No proof is necessary if the gravity or complexity of the matter requires legal assistance, or if the State is obliged to provide legal aid under the law. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15, and to legal aid provided specific contact details of relevant offices to go for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 336

337 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the National Legal Aid Council (NLAC) and the Bar Association. Members of the NLAC are appointed by the Ministry of Justice, the Ministry of Finance, the Bar Association, and the Supreme Council of Magistrates. One member is selected on a competitive basis from the non-governmental sector or academia. Ordinary meetings of the NLAC take place once in three months. In both criminal and civil cases, legal aid services are organised though pub- Organisation lic defender institutions which work in parallel to Statefunded private prac- of legal aid services titioners who take assignments to represent people eligible for legal aid ( ex officio , contract lawyers). The maximum caseload per staff lawyer of a public de- fender institution, at any given time, is 90, at national, regional and local levels. Additionally, in civil cases, legal aid services are also organised through pro bono schemes and through civil society organisations. Territorial Offices of the NLAC manage the appointment of legal aid providers Mechanism for upon request from courts, prosecutors and police (in line with the Regulation assigning legal aid on the functioning of territorial offices of the National Council for State Guaranteed providers Legal Aid ). It usually takes about 2 hours for a legal aid provider to appear after notice is given that legal aid is needed in a criminal case. Although the quality of legal aid services depends on each individual legal aid Accessing legal aid in provider, independent national experts are of the view that legal aid services urban vs. rural areas tend to be better in urban areas where legal aid providers have more indepen- dence to challenge actions of other justice actors. Legal aid lawyers in rural areas see judges, police, prosecutors and opposing counsel socially, which can make it difficult to oppose them in proceedings. 337

338 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Service providers Lawyers 1/1,225 1/237,066 and other providers Full-time Licensed practicing lawyers legal aid lawyers /people /people None 1/111,125 University-based Paralegals /people law clinics Legal aid providers must have a law degree and a professional license and must Qualifications required show proof of passing a professional examination (bar examination). They must also be members of the bar, have completed an apprenticeship with a prac- ticing lawyer, have a contractual relationship with the NLAC, and be registered with a State-authorised roster of legal aid providers. To provide legal aid services, a paralegal must enjoy high respect from the local community and be in a contractual relationship with the NLAC. The Rules on the status and qualifications of paralegals specify that a paralegal must be rigorously trained and qualified to deliver State-funded primary legal aid to communities. All legal aid providers are required to engage in continuing education and/or skills training, and specialized training is mandatory to qualify as a legal aid pro- vider to specific disadvantaged population groups (e.g. persons with disabili- ties, children, refugees, etc.) Public defender institutions regularly conduct and organise training sessions for staff, private lawyers and paralegals (in rural areas). The costs of such continuing education and specialized training is covered by the State. 338

339 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 Yes, community paralegals are recognized in the 2007 Law, which states that primary legal aid may be granted by paralegals and non-governmental organ- isations specialized in the delivery of legal aid. “Paralegal” is defined in the 2007 Law as a person that enjoys high respect from the local community, who has incomplete legal education, who does not practice law, and who is specially trained and qualified to deliver primary legal aid to members of a community. Does any public revenue fund paralegals? Yes, the remuneration for services delivered by paralegals is provided from the state budget as well as from other sources. For instance, the National Legal Aid Board is currently paying the salary and equipment of 32 paralegals. The train- ing of paralegals is carried out by the National Council, from budgetary funds and other sources. Can paralegals engage in litigation (with or without the help of lawyers)? No. Community-based paralegals are recognized as providers of ‘primary’ legal aid (that is, consultations to anyone in need of legal assistance), but not ‘quali- fied’ legal aid (i.e. representation in court). Are there boards that monitor community paralegals? Yes. The 2007 Law provides that the National Council for State Guaranteed Legal Aid establishes the performance and professional development standards for paralegals and monitors the delivery of legal aid services by authorised persons. Finances Primary legal aid services are available free of charge at public defender institu- Costs to recipients tions, at legal advice centers in cities and towns, and at the offices of civil society organisations and paralegals (in rural areas). The State covers all legal aid costs in criminal and civil cases for those meeting eligibility criteria. 339

340 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Legal aid in the annual justice budget $0.32 Legal aid budget per capita in 2013 Legal aid is a separate component in the annual justice system budget. The na- tional budget for legal aid is determined by the Parliament, the Ministries of 142% Justice and Finance and the NLAC. There exists a separate funding mechanism to cover the cost of specialized le- The annual legal aid budget increased by 142% from 2010 gal aid services provided to specific population groups (such as women, chil- to 2013 dren, etc.), which is financed by international donors. Additional services, such as independent investigation, experts, clerical assistance etc., are not covered by the State. In both criminal and cases, some legal aid providers work full-time at the pub- Payments to legal lic defender institutions, while private practitioners receive a fixed fee for each aid providers procedural action (e.g. presence in court, representation at interrogation, etc.) Paralegals receive a fixed fee, monthly, based on a report submitted to the Territorial Offices of NLAC. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, minor witnesses and victims of crime. The State is obliged to provide legal aid to persons who meet a financial thresh- old (US$ 92 per month), children, persons with intellectual/mental disabilities, refugees, and persons whose mother tongue is not the language of official pro- ceedings. Legal aid is also provided when it is required by the interests of jus- tice or due to the case’s gravity, complexity, or case type, as identified in the law. 340

341 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia At what stage of a criminal case? Under the law, qualified legal assistance may be requested at any stage of the criminal proceedings. It is prohibited by law for the police to interview someone in the absence of a lawyer from the moment the person is officially suspected or accused. A per- son can nonetheless be interviewed in the absence of a lawyer as a witness. This can be problematic as the police sometimes determine the person to have a right to legal aid only after the witness has incriminated him/herself. Normally, the police and prosecutors wait only a limited time for the legal aid 25-50% provider to arrive; if it takes too long, the questioning begins even in the ab- Criminal court cases (2013) sence of a legal aid lawyer. A person can also voluntarily decide to waive her/his right to be interviewed in the presence of a lawyer. It is not common for pre-trial detention to be used when suspects have access to legal aid services. To what extent are legal aid services in criminal cases seen as effective? Comparing the services of legal aid providers to services of private lawyers, in- dependent national experts estimate that legal aid providers are less likely than private lawyers to give advice to the suspect/defendant in private before any contact with a justice official, to challenge the reliability of evidence against the suspect/defendant, to communicate with the defendant’s family about the case when requested by the defendant, or to challenge the credibility of witnesses. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the 56% judge’s objective analysis of evidence and testimony’ and ‘bribery/corruption’ to People who believe that the police be amongst the most influential factors in reaching a dismissal of charges or ac- always or often respects the basic quittal in criminal cases. rights of suspects WJP Rule of Law Index 2015 341

342 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold (US$92 per month) and to those whose incapacity is officially declared. Legal aid is also provided when it is required by the interests of justice or due to the case’s gravity, complexity, or case type, as identified in the law (the case must sat- isfy a ‘merit test’.) 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Administrative matters and Contractual disputes Child custody issues and marital disputes disputes with State agencies and tort claims Property issues Labor disputes For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with the drafting or filing of a complaint or a response, to gain ac- cess to State services, to provide victims of violence with protective services, to conduct depositions or other official queries, and to negotiate between parties. Legal aid can also be provided throughout proceedings. 342

343 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Estimated demand for legal aid Public interest litigation / class action cases: services in civil cases Independent national experts are of the view that there is public demand for public interest litigation and class action cases addressing labour rights, dis- crimination, consumer rights, health and environmental protection. At nation- al, regional and local levels, staff lawyers of the NLAC sometimes coordinate to uniformly challenge common violations of national and international due pro- cess rights and human rights. 50% From respondents How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees 50% Attorney fees Lack of legal aid From complainants Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious Female victims of violence (including victims of sexual and gender-based vio- Women’s access lence) receive legal aid services in all legal proceedings, as well as court support to legal aid services services, such as interpretation and translation of documents. National experts explain that a major challenge faced by women seeking le- gal aid is that the means test for eligibility to legal aid often considers overall household income rather than a woman’s income specifically, which tends to be considerably lower. Other challenges identified by national experts include the unavailability of specialized legal aid services for women, women's lack of aware- ness about where to find legal assistance and how legal aid services can help them, and their lack of confidence in the quality of legal aid services provided to them. Finally, experts note that women may also prefer not to seek out legal as- sistance because they see court processes as too time-consuming. 343

344 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia The justice system has specialized lawyers and paralegals representing child Access to legal aid victims, child witnesses or suspected and accused children, at national, region- for children al and local levels. When representing children, legal aid providers often reach out to parents, psychologists and other childcare professionals for support to assist the child throughout proceedings. According to national experts, there is no noticeable difference regarding the use of diversion, alternatives to pre-trial detention and to imprisonment in cas- es where children are represented by legal aid providers and private lawyers. However, when children are represented by legal aid providers specialized in children’s rights, diversion and alternatives to imprisonment are more often achieved than in cases where children are represented by non-specialized le- gal aid lawyers. In criminal cases where legal aid is provided to children, legal aid providers advo- cate for and implement in practice the legally binding requirements to ensure the presence of parents at all times, to prevent a child from giving statements to the police against his/her interests, to prevent disclosure of information about pending charges to the child’s school, community or media, to limit the num- ber of interviews with the child, to ensure that a child held in custody is separat- ed from adult detainees, and to explore grounds to prevent or expunge a juve- nile criminal record. 50-75% 50-75% In 2013, an alternative to Same proportion (50-75%) imprisonment was imposed in when State-funded legal aid was 50-75% of cases where a child was provided (2013) found culpable. 344

345 Global Study on Legal Aid – Country Profiles Moldova Eastern Europe & Central Asia Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative dispute resolution processes, and there are mechanisms that justice systems allow cases to be referred between the formal and informal justice systems. Informal justice proceedings are used to resolve marital or family issues, land and property disputes, inheritance disputes, as well as informal contracts and la- bour conflicts. Under certain circumstances, legal aid service providers can work across differ- ent systems. To qualify for formal mediation/alternative dispute resolution pro- cesses, legal aid providers must have a law degree and be a reputable member of the community. They also need to undergo basic training on legal matters. Quality safeguards Legal aid providers are obliged to adhere to specific quality performance Accountability for standards and ethical rules established by the bar association. the quality of legal aid services If a person has a right to legal aid, but no legal aid provider is available, the pro- ceedings must cease until a legal aid provider arrives. If a legal aid provider is unprepared/unqualified, the proceedings are postponed. This can sometimes be problematic as there are no formal means of assessing a legal aid provider’s qualifications or level of preparedness. Legal aid institutions aim to ensure that the same provider represent the accused/suspect at all stages of the case. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the territorial offices of the NLAC and a peer review team organised by the legal and data collection aid authority or bar association. on the quality of legal aid services The data for monitoring the quality of legal aid services is collected by review- ing complaints by legal aid recipients about a legal aid provider’s actions, as well as by examining defence dossiers kept by lawyers. Interviews with recipients of legal aid are also conducted. There is an acute shortage of data in the justice system. For instance, no data is available on the number of civil cases filed in court where State-funded le- gal was provided. Data is also lacking on case resolution prior to a case’s trans- fer to court. 345

346 Montenegro Eastern Europe & Central Asia Montenegro 621,800 Population Unitary government system 99% 98% 64% 36% Rural population Female literacy rate Male literacy rate Urban population $7,320 0.954 GNI per capita Gender Development Index 0.975 0.95 0.925 $1,045 $4,126 $12,736 0.9 MID/LOW LOW HIGH MID/LOW MID/HIGH LOW HIGH MID MID/HIGH -9.2% 0.728 0.802 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.7 0.8 0.55 LOW LOW VERY HIGH MID HIGH MID HIGH VERY HIGH

347 Global Study on Legal Aid – Country Profiles Montenegro Eastern Europe & Central Asia Legal Aid at a Glance in Montenegro Within the past 5 years $0.92 2015 The most recent reform of the legal When was the last assessment Annual expenditure of legal aid needs conducted on legal aid per capita in 2013 aid system took place in 2015 Priority areas for support Challenges in accessing legal aid Legislative drafting advice h Low public awareness about people’s right to legal aid, as provided by the Law on Legal Aid, and about the availability Development of action plans/policies of legal aid services Development of quality criteria for legal aid providers  h The quality of services provided by legal aid lawyers Establishing paralegal systems is uneven Institutional support Deadlines for processing requests for legal aid are frequently h not complied with  Training h Absence of an adequate mechanism to monitor the quality of legal aid, with specific performance indicators Weak cooperation between state legal aid providers in basic h courts and non-state legal aid providers in NGOs assisting vulnerable groups 347

348 Global Study on Legal Aid – Country Profiles Montenegro Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in 2011 with the implementation of Right to legal aid Law No. 23-3/11-2/13 on Free Legal Aid. The right to legal aid is guaranteed in: The most recent reform of the legal aid system took place in 2015, when the 2 Constitution Parliament adopted amendments to the Law on Free Legal Aid which now 2 Separate law on legal aid guarantees the right to free legal aid to victims of domestic violence regardless Implementing regulations for 2 of their income situation. the law on legal aid 2 Civil procedure code State-funded legal aid is available at national and local levels. 2 Criminal procedure law 2 Law on the treatment of juveniles in criminal proceedings In both criminal and civil cases, legal aid is provided in the form of legal advice, Services included legal representation, preparation of pleadings and legal assistance (before na- as part of legal aid tional tribunals). Legal aid lawyers also provide general assistance in navigating the justice system. Specialized legal aid services are provided by the State for disadvantaged pop- ulation groups, including migrants, stateless persons, asylum seekers, internal- ly displaced persons, children without parental care, persons with disabilities, victims of a crime/domestic violence/human trafficking and LGBT. Legal aid is provided upon request from the person who wants legal aid. Process for obtaining legal aid In both criminal and civil cases, to prove eligibility to receive legal aid, a person must prove status as a recipient of welfare or State subsidies, as well as demon- strate evidence of low income or family hardship (e.g. multiple children, single parent, disabled family member, etc.) A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in the past to legal aid 3 year, and provided specific contact details of relevant offices to go for legal assistance. 348

349 Global Study on Legal Aid – Country Profiles Montenegro Eastern Europe & Central Asia Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Legal Aid Service, which is present in basic courts (First Instance Courts) with ten or more judges in office (some basic courts with fewer than ten judges also have a Legal Aid Service). The Ministry of Justice exercises administrative super- vision over the implementation of the Law on Free Legal Aid. In both criminal and civil cases, the competent authority for granting legal aid Organisation is the president of a basic court (First Instance Court) or a judge authorised by of legal aid services him to do so. The professional and administrative tasks involved in granting le- gal aid are performed by the Legal Aid Service which, inter alia, coordinates ap- pointments of private practitioners (ex officio, or panel appointments) to legal aid cases. To request the services of a legal aid provider, the courts and police contact the Mechanism for bar association, which coordinates appointments and delivery of services. assigning legal aid providers Legal aid services are available in rural areas. Accessing legal aid in urban vs. rural areas 349

350 Global Study on Legal Aid – Country Profiles Montenegro Eastern Europe & Central Asia Service providers Lawyers N/A 1/822 and other providers Licensed practicing Full-time /people lawyers legal aid lawyers /people University-based Paralegals law clinics Legal aid providers must be members of the national bar. Qualifications required Legal aid providers are not required to engage in continuing education and/or skills training. 350

351 Global Study on Legal Aid – Country Profiles Montenegro Eastern Europe & Central Asia Finances Legal aid services are free of charge to those meeting eligibility criteria. Costs to recipients Legal aid in the annual justice budget $0.92 Legal aid budget per capita in 2013 Legal aid is not a separate component in the annual justice system budget. In both criminal and civil cases, legal aid providers submit reports on the hours Payments to legal they spend on a legal aid case. They are entitled to 50% of the fee envisaged by aid providers the Lawyer Tariffs and the reimbursement of necessary expenditures. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crim- inal charges, persons charged with a criminal offence, persons imprisoned on criminal charges, victims of crime, and those who are not able to bear the costs of defence. At what stage of a criminal case? Under the Criminal Procedure Code, legal assistance is provided (1) from the moment a person is indicted for a criminal offence punishable by impris- onment for at least ten years, (2) from the moment a court decision is rendered in the absence of the party, and (3) during the detention period and at a first hearing if the accused, due to special needs or conditions, is unable to defend her/himself. 4.2% Independent national experts identify ‘a well-prepared and/or highly skilled law- yer’, ‘the judge’s objective analysis of evidence and testimony’, and ‘the strength In 2013, State-funded legal aid was of the evidence’ to be amongst the most influential factors in reaching a dis- provided in 4.2% of criminal cases filed in court missal of charges or acquittal in criminal cases. 351

352 Global Study on Legal Aid – Country Profiles Montenegro Eastern Europe & Central Asia Acquitted after trial Pre-trial detention Resolved pursuant to imposed (2013) (2013) a plea agreement or expedited trial (2013) 0.2% 11% 7% <10% Proportion of criminal court cases Who is eligible? Legal aid in civil cases In civil cases, legal aid is provided to persons who are not able to bear the costs of defence because of their financial situation. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Property issues Child custody and Contractual disputes 0.8% and tort claims marital disputes In 2013, State-funded legal aid was provided in 0.8% of civil and administrative cases filed in court Labor disputes Administrative matters Public interest litigation / class action cases: 4 State officials estimate that there is little public demand for public interest In 2013, the number of civil and litigation and class action cases. administrative cases filed in court was more than 4 times the number of criminal cases Legal aid advice and court support services are provided to female victims of Women’s access violence (including victims of sexual and gender-based violence) in all legal to legal aid services proceedings. 352

353 Global Study on Legal Aid – Country Profiles Montenegro Eastern Europe & Central Asia The justice system has specialized courts, judges, prosecutors, police officers and Access to legal aid units specifically dedicated to handling cases involving child victims, child wit- for children nesses or suspected and accused children. 20- 35% <10% <10% In 20-35% of cases when children are In 2013, an alternative to When State-funded legal aid was provided imprisonment was imposed in less , that proportion remained suspected or charged with a criminal than 10% of cases where a child was the same (10%) offence, the case is diverted from the formal justice system without trial found culpable. (e.g. through mediation, a warning or an apology) Informal justice mechanisms are not used to resolve disputes. Legal aid and informal justice systems Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, the pro- Accountability for ceedings must cease until a legal aid provider arrives. the quality of legal aid services If a person receives legal aid services, but the legal aid provider is unprepared or unqualified, a replacement legal aid provider is asked to represent the party instead of the assigned provider. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the Ministry of Justice which, in cooperation with the Supreme Court, conducts and data collection an annual review of the legal aid provided. on the quality of legal aid services 353

354 Slovakia Eastern Europe and Central Asia Slovakia 5.419 million Population Unitary government system 54% 46% N/A N/A Female literacy rate Rural population Urban population Male literacy rate $17,750 0.999 Gender Development Index GNI per capita 0.975 0.95 $1,045 $4,126 $12,736 0.9 0.925 MID/LOW MID/HIGH LOW MID/LOW MID/HIGH MID LOW HIGH HIGH -6.2% 0.844 0.791 HDI Loss in HDI due to inequality Inequality-adjusted HDI 0.55 0.7 0.8 0.7 0.55 0.8 LOW LOW VERY HIGH MID HIGH MID VERY HIGH HIGH

355 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia Legal Aid at a Glance in Slovakia $0.42 2005 Within the past 5 years When was the last assessment Annual expenditure The latest reform of the legal aid on legal aid per capita in 2013 of legal aid needs conducted system took place in 2005, when the National Council adopted Act No. 327/2005 Coll. On Provision of Legal Aid for People in Financial Need Priority areas for support Challenges in accessing legal aid Legislative drafting advice  h Insufficient number of lawyers to cover legal aid needs h People do not know enough about legal aid assistance Development of action plans/policies Development of quality criteria for legal aid providers  and where to find it People may not understand how legal aid services can help Establishing paralegal systems h  Institutional support them and may not always have confidence in the quality of legal aid services Training h Low pay for legal aid work 355

356 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in 1961. Right to legal aid The latest reform of the legal aid system took place in 2005, when the National The right to legal aid is guaranteed in: Council adopted Act No. 327/2005 Coll. On Provision of Legal Aid for People in 2 Constitution Financial Need. This Act established a Legal Aid Center with a mandate to up- 2 Separate law on legal aid hold people's right to legal aid when a person is financially unable to bear the Implementing regulations for 2 expenses of legal services. the law on legal aid 2 Civil procedure code State-funded legal aid is available at national, regional and local levels. 2 Criminal procedure law For both criminal and civil cases, legal aid is provided in the form of legal advice, Services included legal representation and legal assistance (before national tribunals). as part of legal aid Specialized legal aid services are provided by civil society organisations for dis- advantaged population groups, including persons with physical and mental dis- abilities, children, women, the elderly, migrants, refugees, asylum seekers, state- less persons and LGBT. Legal aid is provided upon request from the person who wants legal aid, as well Process for obtaining as upon request from the police or prosecutor. legal aid In both criminal and civil cases, a person must prove his/her eligibility by prov- ing status as a recipient of welfare or state subsidies, or by providing evidence of low income (if employed). Additionally, in civil cases, an applicant must provide evidence of membership of a protected group (such as migrants, children, dis- placed persons, refugees, etc.) or prove that his/her claim has merit. In criminal cases, no proof is necessary in situations where the State is obliged to provide legal aid under the law. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15, and to legal aid provided specific contact details of relevant offices to go for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 356

357 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Ministry of Justice, the Slovak Bar Association and the Legal Aid Centre. In both criminal and civil cases, legal aid services are organised thoughthe Organisation Slovak Bar Association and through pro bono schemes. of legal aid services Additionally, in criminal cases, legal aid services are provided through panel appointments (ex officio, contract lawyers), and in civil cases, through the Legal Aid Centre. representation in criminal proceedings, a court, in In the case of ex officio Mechanism for accordance with its territorial jurisdiction, assigns a legal aid provider by draw- assigning legal aid ing from the list of ex officio lawyers published on the website of the Slovak providers Bar Association. The Bar Association also publishes a list of lawyers providing legal aid in civil and administrative matters, upon appointment by the Legal Aid Centre. Legal aid services are available in both urban and rural areas. The quality of legal Accessing legal aid in aid services depends on each individual legal aid provider. urban vs. rural areas 357

358 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia Service providers Lawyers 1/967 N/A and other providers Full-time Licensed practicing /people /people legal aid lawyers lawyers University-based Paralegals law clinics Are not allowed to provide legal aid Legal aid providers must have a law degree and a professional license, and Qualifications required must show proof of passing a professional examination (bar examination). They must also be members of the Slovak Bar Association, and have completed an internship with a practicing lawyer. The requirement to engage in continuing education and/or skills training is not imposed on legal aid providers. Finances The State covers all legal aid costs in criminal cases for those meeting eligibili- Costs to recipients ty criteria. However, there are set fees for certain actions and, in case of ex officio representation, the State can request the recipient to reimburse representation costs after conviction. 358

359 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia Legal aid in the annual justice budget $0.42 Legal aid budget per capita in 2013 Legal aid is not a separate component in the annual justice system. The national budget for legal aid is determined by the Ministries of Justice and Finance. There exists a separate funding mechanism to cover the cost of specialized legal aid services provided to specific population groups (such as women, children, etc.), which is financed by the government, private companies, private foundations and international donors. Additional services, such as independent investigation, experts, clerical assis- tance etc., are not covered by the State. In criminal cases, legal aid providers receive a fixed fee from courts for each Payments to legal procedural action that a State agent witnesses and approves in writing (e.g. aid providers presence in court, representation at interrogation, etc.). In civil cases, legal aid providers receive payment from the Ministry of Justice on a case-by-case basis. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, and victims of crime. The State is obliged to provide legal aid to persons who meet a financial thresh- old, children, persons with intellectual/mental disabilities, and persons who face a potential prison sentence of at least ten years. Legal aid is also provided when it is required by the interests of justice or due to the case’s gravity, complexity, or case type, as identified in the law. 359

360 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia At what stage of a criminal case? Under the law, legal aid is provided during questioning of a potential suspect/ defendant before formal charges are filed, including during a search of the sus- pect’s/defendant’s residence. Legal aid must be provided from the moment a law enforcement representative restricts the suspects/defendant’s freedom, or at least from the moment charges are officially filed. Legal aid is also provided during trial and for a first appeal. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid providers are less likely <10% than private lawyers to perform actions such as ‘giving advice to the suspect/ Proportion of criminal court cases defendant in private before any contact with the state justice official’ or ‘con- (2013) ducting investigation to establish doubt about the suspect/defendant’s guilt even if this person may be guilty’, amongst others. Furthermore, national experts identify ‘a well-prepared and/or highly skilled law- yer’, ‘the judge’s objective analysis of evidence and testimony’, and ‘the strength 19% of the evidence’, to be amongst the most influential factors in reaching a dis- missal of charges or acquittal in criminal cases. In 2013, pre-trial detention was imposed on 19% of criminal cases filed in court Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold and refugees, provided that the case satisfies a merit test. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Contractual disputes Child custody issues and Labor disputes 0.23% marital disputes In 2013, 0.23% of civil and administrative cases filed in court received legal aid Property issues Administrative matters and claims for State services / disputes with State agencies 142 In 2013, the number of civil and administrative cases filed in court was 142 times higher than the 360 number of criminal cases

361 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia For what actions is a party eligible for legal aid? Estimated demand for legal aid services in civil cases Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with drafting and filing complaints and responses, gaining ac- cess to State agencies, protecting victims of violence, conducting negotiations between parties, and drafting motions. Legal aid can also be provided during mediation, pre-trial hearings, independent investigation and trial, as well as for any appeal to national and international tribunals, or cassation. 50% Public interest litigation / class action cases: From respondents Independent national experts are of the view that there is public demand for public interest litigation and class action cases addressing labour rights, discrimination, consumer rights, rights of refugees and migrants, health and en- vironmental protection. At national, regional and local levels, staff lawyers of the Legal Aid Centre some- 50% times coordinate to uniformly challenge common violations of national and in- ternational due process rights and human rights. From complainants There are no specialized legal aid services for women. However, legal aid advice Women’s access and court support services are provided to female victims of violence (including to legal aid services victims of sexual and gender based violence) in all legal proceedings. The justice system has specialized lawyers for representing child victims, child Access to legal aid witnesses or suspected and accused children, at national, regional and local for children levels. When representing children, legal aid providers often reach out to parents, psychologists and other childcare professionals for support to assist the child throughout proceedings. 20-35% In 2013, an alternative to imprisonment was imposed in 20-35% of cases where a child was found culpable 361

362 Global Study on Legal Aid – Country Profiles Slovakia Eastern Europe & Central Asia Independent national experts explain that some people prefer to resolve dis- Legal aid and informal putes through informal justice proceedings rather than formal because they justice systems are less time-consuming and more familiar. Experts add that there is also an as- sumption amongst people that because judges or decision makers in informal proceedings usually know the parties, they can better judge what is a just out- come and which outcome would be acceptable to all parties. Quality safeguards Legal aid providers are obliged to adhere to specific quality performance stan- Accountability for dards and ethical rules established by the Slovak Bar Association. the quality of legal aid services Legal aid providers often remain in the same case until its resolution in the court, unless the original lawyer becomes unavailable or is unqualified to represent the suspect/defendant at trial. In practice though, there are no formal means of assessing a legal aid provider’s qualifications or level of preparedness. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient if s/he has too many cases, or lacks expertise in the law or skills required by the specific case, or if there is incompat- ibility or conflict of interest with the legal aid recipient. No data is collected to monitor the quality of legal aid services. However, legal Monitoring aid recipients can file complaints if they are dissatisfied with the assistance they and data collection receive. on the quality of legal aid services There is an acute lack of data across the system. For instance, data about chil- dren is not recorded separately, and no data is available on case resolution prior to a case’s transfer to court. 362

363 Turkmenistan Eastern Europe and Central Asia Turkmenistan 5.307 million Population Unitary government system N/A N/A 50% 50% Rural population Female literacy rate Male literacy rate Urban population $8,020 N/A GNI per capita Gender Development Index 0.975 0.95 0.925 $1,045 $4,126 $12,736 0.9 MID/LOW LOW HIGH MID/LOW MID/HIGH MID HIGH LOW MID/HIGH N/A N/A 0.688 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.8 0.55 0.7 0.7 0.55 0.8 LOW LOW HIGH VERY HIGH MID HIGH VERY HIGH MID

364 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia Legal Aid at a Glance in Turkmenistan N/A N/A 2010 Most recent reform Annual expenditure When was the last assessment on legal aid per capita in 2013 of the legal aid system in 2010 of legal aid needs conducted Priority areas for support Challenges in accessing legal aid  Legislative drafting advice Low pay for legal aid work h h People often do not know where to find legal assistance, and Development of action plans/policies may not know that legal aid services are available at little Development of quality criteria for legal aid providers  or no cost Establishing paralegal systems h In criminal cases, people often think that legal aid lawyers are Institutional support working as part of the police, prosecutor or judicial agencies Training  People often lack of confidence in the quality of legal aid h services, which leads them to prefer to resolve issues through the informal justice system or outside the court system, where legal aid has no role 364

365 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia Legal framework The right to legal aid was first recognized in Article 108 of the 1938 Constitution Right to legal aid of Turkmenistan. A substantial reform of the legal aid system has been ongo- ing since 2010, when Article 5 of the Law of Turkmenistan, “On Advocacy”, was The right to legal aid is guaranteed in: adopted. The Ministry of Justice, the parliament and the Presidency played Constitution 2 an instrumental role in this reform. 2 Separate law on legal aid 2 Law on the prosecution State-funded legal aid is available at national, regional and local levels. 2 Civil procedure code 2 Law on the penitentiary 2 Criminal procedure law 2 Implementing regulations for the law on legal aid Legal aid is mainly provided in the form of legal advice, legal representation Services included and legal assistance (before tribunals). Legal aid providers also provide general as part of legal aid assistance in navigating the justice system, and in executing legal documents. Specialized legal aid services are provided by the State for specific population groups, including children and persons with disability. Legal aid is provided upon request from the person who wants legal aid, or from Process for obtaining the police or prosecutor. The court presiding over a case must also assess eligi- legal aid bility during the first appearance of the parties. To receive legal aid, a person must prove eligibility by providing supportive doc- umentation (e.g. proving status as recipient of welfare or as a member of a pro- tected group, demonstrating family hardship, etc.). No proof is necessary in cas- es where the State is obliged to provide legal aid under the law. The State periodically carries out public information campaigns to raise aware- Awareness of the right ness about the right to legal aid and how to access legal aid services (provid- to legal aid ing the address, phone number and name of office to go to for legal assistance). Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 365

366 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia Delivery model The bar association has chief responsibility for the management of legal aid. Legal aid authority Legal aid services for both criminal and civil cases are provided through pan- Organisation el appointments (constituted ex officio or by contracted lawyers), through the of legal aid services bar association, and through pro bono schemes (in addition to being a require- ment set by several law firms, services are also seen by junior lawyers pro bono as a means to acquire experience.) The courts and the police have a roster of legal aid providers on duty for a given Mechanism for day, and call them in the given order. assigning legal aid providers State-funded legal aid services are available in rural areas, but the quality of le- Accessing legal aid in gal services tends to be higher in urban areas. This can be explained by the fact urban vs. rural areas that legal aid providers in rural areas often see justice actors socially, which can make it difficult to oppose them in proceedings. 366

367 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia Service providers Lawyers N/A N/A and other providers Licensed practicing Full-time /people lawyers /people legal aid lawyers None University-based Paralegals law clinics Are not officially recognized as providers of legal aid Legal aid providers are not required by law to engage in continuing education Qualifications required or skills training, but the State does allot some funds to this effect, if legal aid pro- viders choose to further their education. Finances Legal aid services for both criminal and civil cases are free of charge for those Costs to recipients meeting eligibility criteria (while set fees are charged for certain actions). Primary legal aid services are provided for free at the office of the Ministry of Justice, as well as the legal advice centres located in city administrative offices. The national budget for legal aid is determined by the the bar association. Legal aid in the annual Specialized legal aid services for disadvantaged populations are funded by the justice budget State with substantial contributions from private actors and international do- nors. The State does not cover the costs of additional services such as indepen- dent investigation, experts, psychological or social work support, etc. 367

368 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. obliged The State is to provide legal aid depending on the case’s gravity, complexity, or case type, as identified in the law. In particular, the State must pro- vide legal aid to children, persons with physical, intellectual and mental disabil- ities, internally displaced persons and refugees, persons whose mother tongue is not the language of official proceedings, and persons who potentially face a prison sentence. At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, or at least from the moment charges are officially filed (it takes approximately six hours for a lawyer to appear after notice is given that legal aid is needed in criminal cas- es). Legal aid is also provided during trial, for any cassation, and for consider- ation of probation, or social rehabilitation/reintegration matters after release from prison. In criminal cases, legal aid institutions aim to ensure that the same provider rep- resents the accused/suspect at all stages of the case. It is prohibited by law for the police to interview someone in the absence of a lawyer, unless the person is interviewed as a witness, or s/he has agreed to be interviewed without a lawyer. In practice, however, when it takes too long for the legal aid provider to arrive, the police sometimes begins to question the per- son before the arrival of the lawyer. It also occasionally happens that the police determines the person to have a right to legal aid only after the witness has in- criminated him/herself. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are less likely than private lawyers to perform actions such as ‘giving advice to the suspect/defen- dant in private before any contact with state justice officials’, and ‘conducting in- vestigations to establish doubt about the suspect/defendant’s guilt even if this person may be guilty’. 368

369 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia Furthermore, experts identify ‘bribery/corruption’, ‘the judge’s objective analysis of evidence and testimony’ and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in crimi- nal cases. Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to anyone who meets a financial threshold. Estimated demand for legal aid services in civil cases 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Marital and child Tort claims Property issues custody issues 50% From respondents Labor disputes Administrative matters For what actions is a party eligible for legal aid? Under the law, legal aid should be provided when parties conduct depositions or other official queries. 50% Public interest litigation / class action cases: From complainants State-funded legal aid is not provided for public interest litigation and class action cases, but there is demand for legal aid to address health. labour rights, consumer rights and discrimination issues. According to national experts, women may find it difficult to confide in a legal aid Women’s access provider, especially that it is not socially acceptable for women to seek legal aid in to legal aid services Turkmenistan. Furthermore, women often do not know where to find legal assis- tance, and may not have confidence in the quality of legal aid services provided to them. For all of these reasons, women may prefer to resolve issues through the informal justice system or outside the court system, where legal aid has no role. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings; court support services, such as interpretation and translation of documents, are also provided. 369

370 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia The justice system has a specialized juvenile police as well as administrative Access to legal aid bodies called ’Commissions on Minors’ (with specialized prosectors) specifically for children dedicated to handling cases involving child victims, child witnesses or suspect- ed and accused children. When representing children, legal aid providers routinely reach out to parents and child protection practitioners for support to assist the child throughout proceedings. When children are represented by legal aid providers in criminal cases, nation- al experts observe that diversion away from judicial proceedings, as well as al- ternatives to pre-trial detention and to imprisonment, are more often achieved than in cases where children are represented by private lawyers or not repre- sented at all. Informal justice proceedings handle marital or family disputes, land and proper- Legal aid and informal ty disputes, inheritance disputes, and disputes related to informal contracts and justice systems labor agreements. National experts explain that people prefer to resolve disputes through infor- mal justice proceedings because they understand how they work, and they find them less time-consuming. Furthermore, people are of the view that because judges or decision-makers usually know the parties, they can better judge what is a just outcome acceptable to all parties. Lawyers and paralegals are allowed to provide legal assistance in customary or religious mediation and adjudication processes. However, there is no mecha- 80% nism in place to allow for the referral of cases between the formal and informal 80% of disputes are resolved justice systems. through formal mediation / alternative dispute resolution processes 370

371 Global Study on Legal Aid – Country Profiles Turkmenistan Eastern Europe & Central Asia Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a qual- the quality of legal ified legal aid provider arrives. The implementation of this provision is however aid services problematic as there is no formal means of assessing whether the legal aid pro- vider is unprepared or unqualified. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he has too many cases, or if there is a conflict of interest with the legal aid recipient. The bar association is formally responsible for monitoring the quality of legal Monitoring aid services. Data is collected through the review of complaints by legal aid and data collection recipients. on the quality of legal aid services There is an acute shortage of data in the justice system. For instance, no data is available on the number of criminal or civil cases filed in court where State- funded legal was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a cases’s transfer to court. 371

372 Ukraine Eastern Europe and Central Asia Ukraine 46.36 million Population Unitary government system 100% 100% 69% 31% Rural population Female literacy rate Male literacy rate Urban population $3,560 1.003 GNI per capita Gender Development Index $1,045 $4,126 $12,736 0.975 0.95 0.925 0.9 LOW MID/HIGH HIGH MID/LOW MID/HIGH MID LOW HIGH MID/LOW -7.8% 0.689 0.747 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.7 0.55 0.8 0.8 0.55 0.7 LOW LOW HIGH VERY HIGH VERY HIGH MID HIGH MID

373 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia Legal Aid at a Glance in Ukraine 2015 N/A $0.10 The most recent reform Annual expenditure When was the last assessment of the legal aid system took on legal aid per capita in 2013 of legal aid needs conducted place in 2015 People who received legal People’s trust in courts assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 2 A lot pay a debt, during the past 3 years 55 Some Citizen survey, WJP Rule of Law Index 2015 A Little 22 No Trust 22 59% 3 3 Sample size: 44 0% 100 % Priority areas for support Challenges in accessing legal aid h People often do not know where to find legal assistance Legislative drafting advice and are often unaware that legal aid services are available Development of action plans/policies  at little or no cost  Development of quality criteria for legal aid providers Shortage of lawyers outside urban areas  Establishing paralegal systems h Institutional support Low pay of lawyers for legal aid work h  Training  Little support among the population for spending public h funds to defend accused criminals h Low quality of services provided by legal aid lawyers 373

374 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia Legal framework The right to legal aid was first recognised in 1996, when the Parliament Right to legal aid ( Verkhovna Rada) adopted the Constitution. While Article 59 of the Constitution guarantees free legal assistance in cases stipulated by law, no institutional or The right to legal aid is guaranteed in: legislative regulation was in place to ensure the realization of this right. Legal Constitution 2 aid reform started in 2011 with the adoption of the Law of Ukraine on “Free le- 2 Separate law on legal aid (Law on Free Legal Aid) gal aid” (2 June 2011). The law lays down the foundation for the development Implementing regulations for 2 of a two-fold (primary and secondary) legal aid system. the law on legal aid 2 Law on judicial procedure A State Programme on the Creation of a Free Legal Aid System in Ukraine (for 2 Law on police the current period until 2018) was adopted by the Cabinet of Ministers in July 2 Law on the Judicial System 2012. The first stage of the reform was focused on developing the secondary and Status of Judges Law on the Prosecutor's Office 2 legal aid system. In 2015, a network of 100 local centres for secondary legal aid Civil procedure code 2 provision was established to ensure the provision of legal aid to socially unpro- 2 Code of Ukraine on tected population groups. Administrative Offences 2 Criminal Executive Code of State-funded legal aid is available at national, regional and local levels. Ukraine Criminal Procedure Code 2 Law On the Bar and Practice of Law For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, provision of legal information, and legal assistance (before as part of legal aid tribunals). Legal aid lawyers also provide general assistance in navigating the justice system, and in executing legal documents. Legal aid is provided upon request from the person who wants legal aid, upon Process for obtaining request from police or prosecutor, or upon request from the institution that legal aid oversees appointment of legal aid providers. The court presiding over a case must also assess eligibility during the first appearance of the parties. The de- termination is automatic if the case or legal aid recipient qualifies for legal aid services. In criminal cases, no proof of eligibility is necessary when, for a particular case, the State is obliged to provide legal aid under the law. In civil cases, a person must prove her/his eligibility by proving status as a recipi- ent of welfare or state subsidies, by demonstrating family hardship (e.g. multiple children, single parent, etc.), by providing evidence of low income (if employed), or by proving membership of a protected group (such as migrants, children, ethnic or religious minority, etc.) 374

375 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in 2014-15, and to legal aid provided specific contact details of relevant offices to go for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Cabinet of Ministers of Ukraine and the Ministry of Justice, and more spe- cifically with the Coordination Centre for Legal Aid Provision, an autonomous gov- ernmental agency subordinated to the Minister of Justice. In both criminal and civil cases, selected private lawyers are contracted by the Organisation State Centres for Secondary Legal Aid Provision to ensure access to legal aid of legal aid services on a permanent basis. Legal aid services are also organised through pro bono schemes. Law firms require their lawyers to provide legal aid services, pro bono which is also seen as a means to practice and acquire experience. A Centre for Secondary Legal Aid Provision assigns a contracted lawyer upon Mechanism for notification from a State justice actor or from an applicant for legal aid. When the assigning legal aid request comes directly from an applicant, a decision on whether or not to pro- providers vide assistance is made by the Centre within ten days. When the request comes from a State justice actor, a decision is made within 24 hours. When it concerns a detainee, assistance is provided from the moment the detainee is placed in detention. Although the quality of legal services depends on each individual legal aid Accessing legal aid in provider, it tends to be better in urban areas since legal aid providers in rural urban vs. rural areas areas often see justice actors socially, which makes it difficult to oppose them in proceedings. 375

376 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia Service providers Lawyers 1/1,512 1/22,680 and other providers Licensed practicing Full-time legal aid lawyers /people /people lawyers University-based Paralegals law clinics Legal aid providers must have a law degree and must show proof of passing Qualifications required a professional examination (bar examination). They must also be members of the bar, pass an open competition to be registered in a State-authorised roster of legal aid providers, and have a contractual relationship with a State Centre for Secondary Legal Aid Provision. Legal aid providers are required to engage in continuing education or skills training, but the State does not allot funds to this effect. Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 Not yet, although a paralegal certification programme, approved by the Ministry of Justice, is to be launched by the end of 2016. Even though there is a lack of clear definition of community paralegals in the law, it is not prohibited for non-qualified persons to be employed at the specialized institutions organised by local self-governing authorities or government-funded centres for legal aid. However, only licensed advocates are allowed to render secondary legal aid. 376

377 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia Does any public revenue fund paralegals? No, although Community Law Centers that involve paralegals and volunteers receive funding from local municipalities and councils. Meanwhile, the centres for legal aid (there are 125 such centers operating in every region of Ukraine) are funded by the State budget of Ukraine, but do not employ paralegals as of now. Can paralegals engage in litigation (with or without the help of lawyers)? No. Are there boards that monitor community paralegals? No. Since paralegals are not officially recognized, there are no provisions in the law governing the monitoring of their activity. The forthcoming certified pro- gramme for paralegals will include monitoring and follow-up tools for future paralegals. Finances Free primary legal aid services include the provision of legal information and ini- Costs to recipients tial legal advice, assistance in drafting requests, complaints and other legal doc- uments (except for procedural documents), and assistance in accessing second- ary legal aid and intermediation. Primary legal aid services are available free of charge to the entire population at the administrative offices of legal advice centres in cities or towns, and at the offices of civil society organisations. Local authorities can also contract legal entities or individuals to provide primary legal aid. The State covers the cost of legal aid services provided to those meeting eligi- bility criteria in both criminal and civil cases. 377

378 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia Legal aid in the annual justice budget $0.10 Legal aid budget per capita in 2013 Legal aid is a separate component in the national justice budget. The national budget for legal aid is determined by the Parliament. There exists no separate funding mechanism to cover the cost of specialized legal aid services for disad- vantaged population groups. In both criminal and civil cases, legal aid providers receive a fixed fee for each ac- Payments to legal tion that a State agent witnesses and approves in writing (e.g. presence in court, aid providers representation at interrogation, etc.) Lawyers submit reports on legal aid ser- vices provided to the agency authorised to issue payment. Additionally, in criminal cases, providers are paid on an hourly basis for actions that the State has identified as a basis for payment. There is also a bonus system for procedural results achieved. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime, and witnesses. The State is obliged to provide legal aid to persons who meet a financial thresh- old, children, persons with intellectual/mental disabilities, and persons whose mother tongue is not the language of official proceedings. Legal aid is also pro- vided when it is required by the interests of justice or due to the case’s gravity, complexity, or case type, as identified in the law. <10% Proportion of criminal court cases (2013) 378

379 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia At what stage of a criminal case? 1% Under the law, legal aid is provided from the moment when a law enforcement Criminal cases which were representative restricts the suspects/defendant’s freedom, or at least from the acquitted after trial (2013) moment charges are officially filed, during pre-trial investigations, trial, appeal and cassation. It is not prohibited by law for the police to interview someone in the absence of a lawyer. However, the police and prosecutors usually wait for some time before starting to question a suspect/defendant, to allow for the legal aid pro- vider to arrive. If it takes too long, the questioning begins even in the absence 0.02% of a legal aid provider. Criminal court cases which were To what extent are legal aid services in criminal cases seen as effective? resolved pursuant to a plea agreement, procedural agreement Independent national experts estimate that there is no noticeable difference in or expedited trial (2013) the quality of services provided by legal aid lawyers, when compared with ser- vices provided by private lawyers. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘bribery/corruption’ to be amongst the most influential factors in reaching a dismissal of charges or ac- quittal in criminal cases. How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 48% Excessive pre-trial detention In 2013, State-funded legal aid was Delay of cases provided in 48% of criminal cases Poor judicial decisions filed in court Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious 51% People who believe that the police always or often respects the basic rights of suspects 379 WJP Rule of Law Index 2015

380 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold, children, persons with physical or intellectual/mental disabilities, and refugees. For what actions is a party eligible for legal aid? Legal aid can be offered to assist with drafting and filing claims for State ser- vices or disputes with State agencies, as well as drafting motions. Legal aid can also be provided throughout dispute resolution proceedings. Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for strategic litigation, public interest litigation and class actions addressing labour rights, consumer rights, discrimination and health issues. At the national level, staff lawyers of legal aid centres sometimes coordinate to uniformly challenge common violations of national and international due process rights and hu- man rights. How serious are the following problems in influencing people’s decisions Estimated demand for legal aid on whether or not to go to civil courts to resolve a dispute, in the city services in civil cases where you live? according to national experts, WJP Rule of Law Index 2015 Court fees 30% Attorney fees Lack of legal aid From respondents Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption 70% Lack of awareness of remedies From complainants 3 3 Not very serious Very serious 380

381 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia According to national experts, women sometimes do not understand how legal Women’s access aid services can help them, or may not know where to find legal assistance. A par- to legal aid services ticular challenge faced by women relates to the financial criteria for eligibility to legal aid, which often considers overall household income rather than women’s (considerably lower) individual income. Experts add that the absence of special- ized legal aid services for women is another significant obstacle to women’s ac- cess to legal aid. The justice system has specialized courts, judges, police officers and units specif- Access to legal aid ically dedicated to handling cases involving child victims, child witnesses or sus- for children pected and accused children. There are also investigators specifically authorised to carry out pre-trial investigations with minors. When representing children, legal aid providers often reach out to parents, so- cial workers and other childcare professionals for support to assist the child throughout proceedings. According to national experts, there is no noticeable difference regarding the use of diversion and of alternatives to pre-trial detention and to imprisonment <10% in cases where children are represented by legal aid providers, when compared with cases where children are represented by private lawyers. In 2013, an alternative to imprisonment was imposed in less than 10% of cases where a child was found culpable In Ukraine, disputes are not resolved through informal justice mechanisms. Legal aid and informal justice systems Quality safeguards Legal aid institutions aim to ensure that the same provider represents the ac- Accountability for cused/suspect at all stages of the case. the quality of legal aid services If a person has a right to legal aid, but no legal aid provider is available, or the provider is unprepared or unqualified, the proceedings must cease until a qual- ified legal aid provider arrives. 381

382 Global Study on Legal Aid – Country Profiles Ukraine Eastern Europe & Central Asia A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient because s/he has too many cases, or lacks expertise in the law or skills required by the specific case, or if s/he has a conflict of interest with the legal aid recipient. The maximum caseload per staff lawyer of a public defender institution is thirty, at national, regional and local levels. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring ‘quality managers’ who are staff members in Centres for Secondary Legal Aid and data collection Provision. on the quality of legal aid services The data for monitoring the quality of legal aid services is collected by review- ing complaints by legal aid recipients about a legal aid provider’s actions, by conducting satisfaction surveys with legal aid recipients, by monitoring ser- vices provided in court, and by checking lawyers’ reports for consistency and reliability. There are still important data gaps in the system. For instance, data about chil- dren is not recorded separately, and no data is available on case resolution prior to a case’s transfer to court. 382

383 Western Europe and Others Group 384 Australia Austria 395 Canada 406 Finland 427 Greece 437 Israel 446 Italy 456 New Zealand 467 Portugal 480 Spain 490 United Kingdom 500 United States of America 511

384 Australia Western Europe and Others Group Australia 23.49 million Population Federal government system 89% 11% N/A N/A Rural population Female literacy rate Male literacy rate Urban population 0.976 $64,540 Gender Development Index GNI per capita 0.95 0.925 0.9 $1,045 $4,126 $12,736 0.975 MID/HIGH MID/LOW LOW MID/LOW MID/HIGH MID LOW HIGH HIGH -8.2% 0.858 0.935 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.8 0.55 0.7 0.7 0.8 0.55 LOW MID HIGH MID HIGH LOW VERY HIGH VERY HIGH

385 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group Legal Aid at a Glance in Australia $23.78 Within the past 5 years 2015 When was the last assessment Annual expenditure The latest reform of the legal aid on legal aid per capita in 2013 of legal aid needs conducted system was carried out in 2015 People who received legal People’s trust in courts assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 20 A lot pay a debt, during the past 3 years Some 42 Citizen survey, WJP Rule of Law Index 2015 A Little 23 No Trust 16 26% 3 3 Sample size: 88 100 % 0% Challenges in accessing legal aid Priority areas for support Due to resourcing constraints, access to legal aid for civil law h N/A proceedings is subject to strict eligibility tests People may not know where to find legal assistance, h or may not be aware that legal aid services are available at little or no cost h Lawyers are paid very little for legal aid work h There is a limited number of lawyers outside urban areas h Insufficient awareness-raising activities about the right to legal aid and available legal aid services 385

386 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group Legal framework While there is no specific legal right to legal aid in Australia, the earliest legal Right to legal aid aid scheme dates back to 1903, when the Commonwealth Government es- tablished a criminal legal aid scheme for criminal matters (Section 69(3) of the The right to legal aid is guaranteed in: Judiciary Act 1903). Separate law on legal aid 2 2 Criminal procedure law In 1973, the Commonwealth Government established the Australian Legal Aid Common law right in criminal 2 Office, and in 1996, federal funding for legal aid was allocated in Commonwealth matters law matters, and state and territory funding was allocated for state and territory law matters. In 2010, the Commonwealth and state and territory governments entered into the first National Partnership Agreement on Legal Assistance Services. The second such Partnership was established in 2015, and included federal funding for independent community legal centres which provide legal services at the level of states and territories. The Ministries of Justice, the exec- utive branches and civil society associations played an instrumental role in in- troducing this latest reform. State-funded legal aid is available at national, regional and local levels. For both civil and criminal cases, legal aid is provided in the form of legal assis- Services included tance, advice and representation (before a court), as well as general assistance as part of legal aid with navigating the justice system, with the execution of legal documents and with alternative dispute resolutions. Legal information is also provided in police precincts, in prisons and in communities. Specialized legal aid services are provided by the State for persons with disabil- ities, children, women, the elderly, migrants, refugees, asylum seekers, stateless persons, indigenous populations, ethnic or religious minorities, LGBT and home- less people. No specialized training is required to provide legal aid services to these groups except for Independent Children's Lawyers. 386

387 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group The process for obtaining legal aid is initiated upon request from the person Process for obtaining who wants legal aid. legal aid To prove eligibility to receive legal aid in criminal and civil cases, a person has to prove status as a recipient of welfare, demonstrate family hardship (e.g. mul- tiple children, single parent, etc.), provide evidence of low income (if employed, e.g. providing tax filing for the previous year) or of membership of a protected group (migrants, national, ethnic or religious minority, non-fluency in the nation- al language, etc.) Alternatively, the agency responsible for the appointment of legal aid providers may determine that the interests of justice require provision of legal aid in the given specific case. No public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services has been conducted by the State in recent to legal aid years. Independent national experts estimate that the general population is ‘not at all knowledgeable’ about legal aid services. Delivery model There are eight legal aid commissions in Australia, one in each state and territo- Legal aid authority ry. The directors of the eight legal aid commissions combine at a national level to form National Legal Aid (NLA). The NLA meets at least once in 3-4 months, and di- rectors are appointed by parliaments and the executives through a competitive se- lection process. Legal aid services in both civil and criminal cases are organised through pub- Organisation lic defender institutions, panel appointments, the bar association, the legal aid of legal aid services commission of a particular state or territory, and through pro bono schemes. In civil cases specifically, legal aid services are also delivered through civil society organisations. In each state or territory, the public defender’s office works in parallel to State- funded private practitioners who take assignments as needed, on a part-time contractual basis with the legal aid administration. Grants are also provided for legal aid matters to legal practitioners who work in legal aid commissions and for private lawyers. 387

388 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group To request the services of a legal aid provider, State agencies contact the legal Mechanism for aid commission of a particular state or territory, which maintains a duty roster. assigning legal aid There are also legal aid providers on duty in courts and police precincts. providers Legal aid services are available in rural areas. There is no noticeable difference in Accessing legal aid in the quality of legal services between urban and rural areas; it depends on each urban vs. rural areas individual legal aid provider. Service providers Lawyers N/A N/A and other providers Licensed practicing Full-time /people legal aid lawyers /people lawyers University-based Paralegals law clinics Are allowed to provide legal information Students are allowed to provide primary in police precincts and in prisons, and to legal aid and to prepare legal documents, provide assistance in navigating the justice under the supervision of a faculty member system, in both civil and criminal cases or practicing lawyer Legal aid providers must have a law degree and show proof of passing a pro- Qualifications required fessional examination, a professional license, and an internship with a practicing lawyer. They must also be interviewed and enter into a contractual relationship with the legal aid administration or legal aid commission of the state or terri- tory where they operate. The same qualification requirements apply to parale- gals, except for the law degree and proof of passing a professional examination. 388

389 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group Legal aid providers are required by the bar association and the State to engage in continuing education or skills training. The State however does not allot funds to this end. Finances Primary legal aid services are available free of charge at the office of the pub- Costs to recipients lic defender, or other State-funded institutional legal aid providers. Free legal advice is provided at legal advice centres in city and/or town administrative of- fices, as well as by the bar association which maintains a roster of qualified law- yers. Civil society organisations also provide legal advice at no cost to people who come to their offices. Legal aid services are free of charge to those meeting eligibility criteria, but ap- plicants may be asked to provide a contribution based on their financial status. Depending on the legal matter, the State may also cover the cost of addition- al services Legal aid in the annual justice budget $23.78 Legal aid budget per capita in 2013 Legal aid is a separate component of the annual justice budget. The legal aid budget is determined by the ministries of finance and justice and the state/ 33% territory governments, in consultation with the legal aid commissions and administrations. The annual legal aid budget increased by 33% from 2010 to 2013 The government allocates separate funding to cover the cost of specialized le- gal aid services, with additional funding provided by private companies and foundations. Most legal aid lawyers are full-time salaried employees in institutions funded Payments to legal by the State. Others work for private law firms that receive funds from the State, aid providers and are paid on an hourly basis for actions that the State has identified as a ba- sis of payment. 389

390 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases In criminal cases, legal aid is available to persons arrested and detained on crim- inal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. obliged The State is to provide legal aid when the accused faces a potential prison sentence. While legal aid may be prioritized to several categories of vul- nerable population groups, the State is only obliged to provide legal aid when the defendant is facing serious charges and cannot afford legal representation. At what stage of a criminal case? Under the law, there is no official entitlement to legal aid. Legal aid may be provided from police interview through to appeal, depending on the specific circumstances of a given case. 50-75% It is not prohibited by law for the police to interview someone in the absence of Proportion of criminal court cases a lawyer. The police, prosecutors or judges can obtain incriminating information (2013) from a suspect or defendant when no legal aid provider is present. It is somewhat common for pre-trial detention to be used even when suspects have access to legal aid services. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely than private lawyers to perform certain actions, such as ‘advocating for alterna- tive resolution of the case when the defendant is under 18 years of age’ and less likely to perform other actions, such as ‘giving advice to the suspect/defendant in private before any contact with a State justice official’. When asked about the most influential factors in reaching a dismissal of charg- es or acquittal in criminal cases, national experts refer to factors such as ‘a well- 90% prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence People who believe that the police and testimony’, and ‘the strength of the evidence’. always or often respects the basic rights of suspects WJP Rule of Law Index 2015 390

391 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to citizens who meet a financial threshold, and to children. Eligibility also depends on the case’s gravity, complexity, or case type, as identified by the law, on the merit of the party’s claim and on the avail- ability of legal aid funds. Legal aid can also be assigned by authorised agencies at their discretion. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Marital issues Child custody issues Claims for State services or disputes with State agencies Contractual disputes Assistance with informal/ traditional justice proceedings For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be offered to assist with the drafting or filing of a complaint or a response, to gain access to State services, and to provide victims of violence with protective ser- vices. Legal aid can also be provided throughout proceedings. 391

392 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group Estimated demand for legal aid Public interest litigation / class action cases: services in civil cases State-funded legal aid is provided for public interest litigation and class action cases, and there is public demand for such initiatives to address environmen- tal protection, consumer rights, health issues, labor rights and discrimination. Staff lawyers coordinate to uniformly challenge common violations of nation- al and international due process rights and human rights at the national and regional levels. 50% From respondents How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? According to national experts, WJP Rule of Law Index 2015 Court fees 50% Attorney fees Lack of legal aid From complainants Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious Female victims of violence (including victims of sexual and gender-based vio- Women’s access lence) are eligible to apply for legal aid for all civil proceedings. Court support ser- to legal aid services vices, such as interpretation and translation of documents may also be provided in all legal proceedings. There are specialist legal assistance services for women including Women's Legal Services, Family Violence Prevention Legal Services that cater almost exclusively to indigenous women and specialist services offered by Legal Aid Commissions. The majority of legal aid for family law proceedings is provided to women.Experts add that women sometimes do not understand how legal aid services can help them, or may not know where to find legal assistance. A particular impediment to women’s access to legal aid relates to the financial criteria for eligibility to legal aid, which often considers overall household income rather than women’s (con- siderably lower) individual income. 392

393 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group The justice system has specialized courts or judges specifically dedicated to han- Access to legal aid dling cases involving child victims (especially for cases of sexual abuses), child for children witnesses and suspected or accused children. Some institutional legal aid pro- viders also have specialized Youth Units. Legal assistance providers work closely with other services, such as social services, to assist children. When comparing criminal cases where children are represented by legal aid providers, and cases where children are represented by private lawyers, inde- pendent national experts observe that the use of diversion tends to be achieved at higher rates when children are represented by legal aid lawyers, while there is no noticeable difference in the use of alternatives to pre-trial detention and alternatives to imprisonment. Experts also observe that legal aid providers specialized in children’s rights con- sistently achieve higher rates in the use of diversion, alternatives to pre-trial de- tention and alternatives to imprisonment, compared to non-specialized legal aid providers. Informal justice proceedings typically handle disputes related to marital affairs Legal aid and informal or family, child custody, land and property, inheritance, informal contracts and justice systems labor agreements. According to national experts, people prefer to resolve dis- putes through informal justice proceedings because they take less time, people understand better how they work, they are inexpensive, and people are more confident that they will lead to a negotiated outcome that is acceptable to all parties. Informal justice mechanisms allow for a lawyer to provide assistance in formal mediation and alternative dispute resolution processes, and there is a mecha- nism that allows cases to be referred between the formal and informal justice systems. Legal aid providers supporting informal justice proceedings must have a law degree as well as professional qualifications and experience in alternative dis- pute resolution processes. 393

394 Global Study on Legal Aid – Country Profiles Australia Western Europe and Others Group Quality safeguards Legal aid providers are obliged to adhere to specific quality and performance Accountability for standards and to ethical rules established by the bar association. the quality of legal aid services Criminal cases may be stayed by the court if the defendant is facing serious charges and cannot afford legal representation. Legal aid is provided in those circumstances to allow the case to proceed and to support a fair trial. In both criminal and civil cases, if a party is denied access to legal aid, s/he has a right to appeal this decision. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he has too many cases, if s/he has a conflict of interest or if there is incompatibility with the legal aid recipient, or due to lacking expertise in the law or skills required in the specific case. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the legal aid commissions at state/territory level, the Ministry of Justice, and in- and data collection stitutional legal aid providers. Data is collected through the monitoring of ser- on the quality vices provided in court, the review of complaints by legal aid recipients, satisfac- of legal aid services tion surveys filled by legal aid recipients, and periodic reviews and evaluations of legal aid systems managed by each state/territory. 394

395 Austria Western Europe and Others Group Austria 8.534 million Population Federal government system 66% 34% N/A N/A Male literacy rate Female literacy rate Rural population Urban population 0.943 $49,670 Gender Development Index GNI per capita 0.975 0.9 0.925 0.95 $1,045 $12,736 $4,126 MID/LOW LOW MID/LOW MID/HIGH LOW HIGH MID/HIGH HIGH MID -7.8% 0.885 0.816 Loss in HDI due to inequality HDI Inequality-adjusted HDI 0.8 0.7 0.8 0.55 0.55 0.7 HIGH MID LOW HIGH MID LOW VERY HIGH VERY HIGH

396 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Legal Aid at a Glance in Austria Within the past 3 years Within the past 5 years N/A Substantial reforms of the legal Annual expenditure When was the last assessment aid system have been undertaken on legal aid per capita in 2013 of legal aid needs conducted over the past three years People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 28 A lot pay a debt, during the past 3 years Some 42 Citizen survey, WJP Rule of Law Index 2015 19 A Little 11 No Trust 38% 3 3 Sample size: 134 0% 100 % Priority areas for support Challenges in accessing legal aid h Little support among the population for spending public N/A funds to defend accused criminals 396

397 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Legal framework The right to legal aid was first recognized in 1985. Right to legal aid There have been several substantial reforms or reorganisation of the legal aid The right to legal aid is guaranteed in: system in the past three years. The Ministry of Justice and the bar association 2 Constitution played an instrumental role in these reforms. 2 Criminal procedure code 2 Civil procedure law State-funded legal aid is available at the national level only. 2 Administrative law Criminal procedure law 2 2 Fair trial principle codified in Art 6 ECHR, which is part of Constitutional law Legal aid is mainly provided in the form of legal advice, legal representation and Services included legal assistance (before tribunals). Legal aid providers also provide general assis- as part of legal aid tance in navigating the justice system, in executing legal documents and in pro- viding legal information. There are no specialized legal aid services for specific disadvantaged population groups, except for crime victims. Legal aid is provided upon request from the person who wants legal aid. The de- Process for obtaining termination is automatic if the case or legal aid recipient qualifies for legal aid. legal aid To prove eligibility to receive legal aid in both criminal and civil and administra- tive cases, a person must prove status as a recipient of welfare or state subsidies for poor or vulnerable members of the population, or show evidence of low in- come, if employed. In criminal cases only, entitlement to legal aid depends on the gravity or complexity of the matter requiring assistance, and no proof is nec- essary when the State is obliged to provide legal aid under the law. The State has carried out public information campaigns to raise awareness Awareness of the right about the right to legal aid and how to access legal aid services in 2014-15. to legal aid Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 397

398 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Delivery model The bar association has chief responsibility for the management and administra- Legal aid authority tion of legal aid. There is no institutional legal aid provider. State-funded legal aid services for Organisation both criminal and civil cases are organised mainly through the bar association, of legal aid services which manages lawyers’ appointment without the involvement of any other agency. Provision of pro-bono legal services is a condition for membership of the bar. The bar association also enters into contractual agreements with pri- vate law firms. In 2008, an emergency defence lawyer scheme for arrested suspects was es- tablished by the bar association in cooperation with the Ministry of Justice. Courts and police contact the bar association, which coordinates appointments Mechanism for and delivery of legal aid services. assigning legal aid providers In criminal cases, it takes approximately six hours for the legal aid provider to appear after notice is given that legal aid is needed. State-funded legal aid services are available in rural areas. Accessing legal aid in urban vs. rural areas According to independent experts, the quality of legal aid services tends to be better in urban areas, but it ultimately depends on each individual legal aid provider. 398

399 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Service providers Lawyers 1/1,422 N/A and other providers Licensed practicing Full-time legal aid lawyers lawyers /people /people University-based Paralegals law clinics Are not allowed to provide legal aid independently State-funded legal aid providers must have a law degree, be members of the na- Qualifications required tional bar, and pass a professional examination. In addition, legal aid providers must have completed an internship with a practicing lawyer, a judge or other State justice agency. Legal aid providers are required by law to engage in con- tinuing education or skills training. Finances Primary legal aid services are available free of charge at the bar association, Costs to recipients which maintains a roster of qualified lawyers available to provide legal advice, and through civil society organisations, which provide legal advice to people who come to their offices. Legal aid services are free of charge to those meeting eligibility criteria. In cer- tain cases, there is a sliding scale of payment, based on financial status. 399

400 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group There is no separate component for legal aid in the annual justice budget. The Legal aid in the annual national budget for legal aid is determined by the parliament and the Ministries justice budget of Justice and Finance. The bar association also participates in budgetary decisions. The State does not provide separate funding for specialized legal aid services targeted at disadvantaged populations, but it covers the costs of additional ser- vices such as independent forensic experts, translation and psychological or so- cial work support. The Ministry of Justice pays an annual lump sum to the Bar Association, which is Payments to legal used for the pension system of lawyers. aid providers Legal aid providers work in law firms that receive funding from the State. In civil and administrative cases, legal aid providers work full-time in institutions fund- ed by the State. Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons arrested and detained on criminal Under the law, legal aid is charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, and victims of crime. The State is obliged to provide legal aid to persons who meet a financial thresh- old, persons with physical or intellectual/mental disabilities, persons whose mother tongue is not the language of official proceedings, and persons who are facing a potential prison sentence. The State is also obliged to provide legal aid services according to the case’s gravity, complexity, or case type, as identified in the law, and when the law notes that the interests of justice require it. At what stage of a criminal case? Under the law, the suspect/defendant is entitled to legal aid for all actions or <10% stages of a criminal case if the requirements are met. Legal aid is mandatory when pre-trial detention is enforced. Proportion of criminal court cases (2013) 400

401 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Before the examination, the accused must be informed of: the charges against him; his right to remain silent or make a statement; and that the statement can be used for his defence but also as evidence against him. Furthermore, the ac- cused has the legal right to have a defence counsel present during the examina- tion. The accused also must be informed of his right not to incriminate himself if he is being questioned as a witness and the suspicion of a criminal offence aris- es against this person during the questioning. Standardized forms on interro- 87% gation protocol are used to ensure that information on these rights is provided. People who believe that the To what extent are legal aid services in criminal cases seen as effective? police always or often respects the basic rights of suspects Independent national experts estimate that legal aid lawyers are less likely than WJP Rule of Law Index 2015 private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial' or ‘pointing to weaknesses in the ev- idence presented against the suspect/defendant, even if s/he may be guilty’. Experts however note that legal aid providers are more likely than private law- yers to advocate for alternative resolution of cases where the defendant is un- der 18 years of age. When asked about the most influential factors in reaching a dismissal of charges or acquittal in criminal cases, national experts refer to factors such as ‘a well pre- pared lawyer’, ‘the judge’s objective analysis of evidence’, and ‘availability of an in- 20% dependent expert testimony’. In 2013, State-funded legal aid was provided in approximately 20% of How serious are the following problems in criminal courts criminal cases filed in court in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions 20% Inadequate resources In 2013, pre-trial detention was imposed in 20% of criminal court Inadequate criminal defence cases where State-funded legal aid Corruption was provided Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious 401

402 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Who is eligible? Legal aid in civil cases Eligibility for legal aid in civil cases is determined by financial need. 4 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Child custody issues Marital issues Tort claims Labor disputes For what actions is a party eligible for legal aid? A party is eligible for primary legal aid, for assistance in filing complaints and responses, assistance in gaining access to State services, negotiations between parties, and during trial. Public interest litigation / class action cases: State-funded legal aid is provided for public interest litigation and class action cases in administrative cases only, and national experts estimate that there is demand for legal aid to address labor, consumer, health and environmental 38 rights, as well as discrimination. Staff lawyers coordinate to uniformly challenge In 2013, the number of civil and common violations of national and international due process rights and hu- administrative case filed in court was 38 times the number of criminal cases man rights at the national, regional and local levels. 402

403 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Estimated demand for legal aid How serious are the following problems in influencing people’s decisions services in civil cases on whether or not to go to civil courts to resolve a dispute, in the city where you live? According to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid 50% Location of Courthouses From respondents Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness 50% of remedies 3 3 Very serious Not very serious From complainants According to independent national experts, there is no significant disparity be- Women’s access tween men and women in access to information on legal aid. Challenges that to legal aid services some women face include difficulties in confiding in male legal aid providers and lack of specialized legal aid services for women. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings. Court support services, such as interpretation and translation of documents, are also provided. The justice system has specialized courts and judges, specialized prosecutors, Access to legal aid and legal aid units for adolescents. for children When representing children, legal aid providers routinely reach out to parents, social workers and other child protection practitioners for support to assist the child throughout proceedings. When comparing criminal cases where children are represented by legal aid providers, and cases where children are represented by private lawyers, inde- pendent national experts observe that the use of diversion and alternatives to pre-trial detention is more frequent when children are represented by legal aid lawyers. 403

404 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group 35- 20- 50% 35% In 20-35% of cases when children are In 2013, an alternative to suspected or charged with a criminal imprisonment was imposed in offence, the case is diverted from the 35-50% of cases where a child was formal justice system without trial found culpable (e.g. through mediation, a warning, or an apology) Informal justice proceedings are typically used for child custody issues and mi- Legal aid and informal nor criminal cases. People prefer to resolve disputes through informal justice justice systems proceedings because they are less time-consuming, and they lead to a negoti- ated outcome that is acceptable to all parties. Lawyers and paralegals are allowed to provide legal assistance in formal mediation and alternative dispute resolution processes. There is also a mecha- nism in place to allow for the referral of cases between the formal and informal justice systems. Legal aid providers providing assistance to formal mediation must have a law degree. 20% Disputes resolved through formal mediation or alternative dispute resolution processes (2013) 404

405 Global Study on Legal Aid – Country Profiles Austria Western Europe and Others Group Quality safeguards Legal aid providers are obliged to adhere to ethical rules established by the bar Accountability for association. the quality of legal aid services If a person has a right to legal aid, but no legal aid provider is available, or if the lawyer is unprepared or unqualified, the proceedings must cease until a quali- fied legal aid provider arrives. The court can only suggest the replacement of the lawyer; the bar association decides on this issue (and there is no formal means of assessing whether a legal aid provider is unprepared or unqualified.) In both criminal cases and civil cases, if a party is denied access to legal aid, s/he has the right to appeal that decision. After a legal aid provider is appointed, the same provider usually remains in the case until its resolution. A provider can refuse to take a case or ask to be removed from the duty to represent a particular party based on a conflict of in- terest with the legal aid recipient. The responsibility for monitoring the quality of legal aid services officially rests Monitoring with the bar association. However, a single coordinated monitoring mechanism and data collection has yet to be established by the bar. on the quality of legal aid services 405

406 Canada Western Europe and Others Group Canada 35.54 million Population Federal government system 82% 18% N/A N/A Urban population Rural population Female literacy rate Male literacy rate $51,630 0.982 GNI per capita Gender Development Index $1,045 $12,736 0.95 0.975 $4,126 0.9 0.925 MID/HIGH MID/LOW LOW LOW MID/LOW MID/HIGH MID HIGH HIGH -8.8% 0.913 0.832 Loss in HDI due to inequality HDI Inequality-adjusted HDI 0.8 0.7 0.8 0.55 0.55 0.7 HIGH MID LOW HIGH MID LOW VERY HIGH VERY HIGH

407 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Legal Aid at a Glance in Canada $21.65 N/A Within the past 5 years Reforms take place on an When was the last assessment Annual expenditure ongoing basis by the provinces of legal aid needs conducted on legal aid per capita in 2013 and territories This includes only criminal legal aid in provinces, and both criminal and civil legal aid in the territories People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 20 A lot pay a debt, during the past 3 years 44 Some Citizen survey, WJP Rule of Law Index 2015 A Little 24 13 No Trust 44% 3 3 100 % Sample size: 43 0% Priority areas for support Challenges in accessing legal aid Legislative drafting advice There is limited federal and provincial funding for legal aid, h Development of action plans/policies and eligibility requirements throughout Canada are well Development of quality criteria for legal aid providers below the poverty levels thus allowing only the most indigent to access legal aid services Establishing paralegal systems h Institutional support Legal aid is sometimes geographically inaccessible, and people may not always understand how legal aid Training services can help them h It is deemed more important to cover the cost of police, prosecutors and judges than to spend public funds on lawyers Language barriers sometimes exist between legal aid h providers and those who need legal aid There is a limited number of legal aid providers in the country, h and lawyers are paid very little for legal aid work 407

408 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Legal framework It is noteworthy that there is no specific law granting the right to legal aid Right to legal aid in Canada. Instead, there is a constitutional right to a fair trial/proceedings. Accordingly, legal aid is a tool that furthers the right to a fair trial/proceedings. The right to legal aid is guaranteed in: 2 Constitution While there is no law granting the right to legal aid, provincial and territori- al legislation generally prescribes the scope of services included as part of le- gal aid. The legal aid system was most recently reformed 15 years ago, with strong in- volvement by the Ministry of Justice, the courts, the legislative branch, civil so- ciety associations and the bar association. Legal aid is available at the provincial and territorial level. The federal govern- ment pays directly for counsel only when ordered to by the courts. Legal aid is mainly provided in the form of legal information, advice and assis- Services included tance, legal representation before a prosecutor/court/tribunal, and general as- as part of legal aid sistance in navigating the justice system. Specialized legal aid services are provided by the State for specific population groups, including persons with disabilities, children, women, refugees, asylum seekers, stateless and internally displaced persons, and indigenous populations. Civil society organisations also provide specialized legal aid for ethnic or reli- gious minorities and LGBT. While each jurisdiction has its own methods and mechanisms for individuals Process for obtaining to apply for legal aid, it is usually provided upon request from the person who legal aid wants legal aid, or based on a notification from a State justice actor. Eligibility to legal aid is determined by each jurisdiction. An applicant's eligibility for legal aid is determined on the basis of low income; whether the jurisdiction provides legal aid for the type of legal proceeding; and merit of the applicant's case. Family size is part of the income calculation. In criminal matters in particu- lar, eligibility is generally based on financial criteria, on the merit of the case, and the likelihood of incarceration. 408

409 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group The federal government provides support to provinces and territories for public Awareness of the right legal education and information (PLEI). to legal aid Independent national experts estimate that the general population is ‘some- what knowledgeable’ about the right to legal aid services. Delivery model Canada does not have a national legal aid system. The provision of legal aid is ad- Legal aid authority ministered by the provinces and territories: each jurisdiction is responsible for the management and delivery of criminal and civil legal aid services, and has its own le- gal aid authority, pursuant to its legislation. While responsibilities of the legal aid authority also vary from jurisdiction to jurisdic- tion, they generally include the oversight and coordination of the legal aid appoint- ment mechanisms, the establishment of the legal aid strategy and policy, and the setting of performance standards for the delivery of legal aid. Legal aid services are provided through the ‘legal aid boards/commissions’ at Organisation provincial and territorial levels. Board members are jointly appointed by the of legal aid services legislative assembly, the executive and the bar association. The composition and method of appointment of the various boards of directors of the legal aid entities vary by jurisdiction, as does the frequency of meetings. Public defender institutions work in parallel to State-funded private practitioners who enter into a contract with the legal aid administration (or the bar association, or the legal aid board, depending on the jurisdiction) and take assignments in ex- change for remuneration by the State. Civil society organisations also employ provide legal aid services, and some lawyers provide pro bono services. Paralegals are full-time salaried employees of the legal aid administration. The mechanism for assigning legal aid providers varies by jurisdiction, as each ju- Mechanism for risdiction is responsible for the administration and delivery of legal aid services. assigning legal aid providers 409

410 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group State-funded legal aid services are available in rural areas, but the quality of legal Accessing legal aid in aid depends on each individual legal aid provider (with a slight tendency for the urban vs. rural areas quality of services to be higher in urban areas.) Service providers Lawyers 1/393 1/5,077 and other providers Full-time Licensed practicing /people lawyers legal aid lawyers /people 1/5,923 University-based Paralegals /people law clinics Students in university-based law clinics, when supervised by a faculty member or practicing lawyer, can provide primary legal aid, prepare legal documents, and represent people in court, in both civil and criminal matters (they have the same authority as lawyers in criminal cases of low to mid gravity) State-funded legal aid providers must have a law degree and must show proof Qualifications required of passing a professional examination, have completed an internship with a practicing lawyer, and be in a contractual relationship with the agency that oversees the administration of legal aid. Required qualifications for paralegals are determined by each jurisdiction. Legal aid providers are not required by law to engage in continuing education or skills training, and those providing assistance to specific vulnerable groups do not need any specific training. 410

411 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 British Columbia The Legal Services Society Act states that the Legal Services Society or related agencies may employ an individual who is not a lawyer to provide services or- dinarily performed by a lawyer so long as the individual is supervised by a law- yer. The Code of Professional Conduct for British Columbia outlines the specif- ic roles of paralegals. Ontario Yes, community paralegals — known as community legal workers (CLWs) — are specifically provided for in the law. A CLW is a person who is not qualified as a legal practitioner, but is authorised to provide legal services at community legal clinics. CLWs are permitted to provide some of the services that a licensed paralegal is able to provide, but are required to work under the direct supervi- sion of a lawyer. Does any public revenue fund paralegals? British Columbia Yes, public revenue may fund paralegals under the Legal Services Society Act. The government provides funding to the Legal Services Society, which may then allocate its funds to select agencies that employ paralegals providing legal aid services. Ontario Yes, community legal clinics receive their core funding from Legal Aid Ontario. Can paralegals engage in litigation (with or without the help of lawyers)? British Columbia Yes, paralegals may engage in certain stages of litigation, however they may not appear as counsel in court without leave of the court. In 2013, the Law Services Society, the British Columbia Supreme Court, and the British Columbia Provincial Court partnered to create a pilot project (which has since ended) that gave paralegals a limited right to appear in court. Ontario Yes, community legal workers are permitted to provide some of the services that a licensed commercial paralegal is able to provide. However, they are required to work under the direct supervision of a lawyer, not independently. 411

412 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Are there boards that monitor community paralegals? British Columbia Yes, the Code of Professional Conduct for British Columbia specifically provides for the conduct of paralegals, but leaves the supervision of their work to the lawyers that are overseeing them. In addition, the Legal Services Society must report on the operations of the Society, including on the work of community paralegals. A Paralegal Association, whose membership includes over 800 para- legals, students, and related organisations, was formed in 1979 to promote the development, education, and networking of paralegals. Ontario No, as community legal workers do not have to be licensed as paralegals, their work is not monitored. Meanwhile, licensed paralegals in Ontario are governed by a comprehensive regulatory system, including in respect to educational standards, rules of professional conduct, licensing process, insurance require- ments, complaint and disciplinary process, and a compensation fund. Finances Primary legal aid services are provided free of charge at the office of the pub- Costs to recipients lic defender, in legal advice centres located in cities, by the bar association that maintains a roster of qualified lawyers available to provide legal advice, and through a hotline that individuals can call by phone to receive advice. Some civil society organizations provide free legal services limited to specific areas of practice, e.g. immigration matters. Beyond primary legal aid services, other legal aid services are free of charge to those meeting eligibility criteria. For certain actions, there are set fees deter- mined on the basis of a sliding scale of payment, based on financial status. 412

413 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Legal aid in the annual justice budget -2% $2.69 Legal aid budget per capita in 2013 The national legal aid budget (this included only criminal legal aid decreased by 2% from 2010 to 2013 in provinces, and both criminal and civil legal aid in the territories) The budgetary appropriations process varies by jurisdiction, but always requires 9% legislative authority. Legal aid boards/administrations make spending decisions In 2013, 9% of the federal once the budget is set, subject to conditions imposed by the various justice government's legal aid budget was ministries. allocated specifically to immigration and refugee legal aid services The State provides separate funding to cover the cost of specialized legal aid services, such as for immigration and refugee legal aid services, and for pub- lic security and anti-terrorism legal aid services. Private companies and founda- tions also provide funding towards these costs. The cost of additional services (such as independent forensic experts, independent investigators, psycholo- gists or social work support, etc.) are also covered by the State. 2% In 2013, 2% of the federal government's legal aid budget was allocated specifically to public security and anti-terrorism legal aid services Lawyers employed by the public defender are full-time salaried employees. Payments to legal Legal aid providers working in law firms that receive funds from the State re- aid providers ceive a fixed fee for each case (or for each action they take on a case), or are paid on an hourly basis. 413

414 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases available to persons arrested and detained on crimi- Under the law, legal aid is nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. obliged to provide legal aid to youth in criminal proceedings. The State is At what stage of a criminal case? Under the law, legal aid should be provided from the moment charges are offi- cially filed, and is available at all stages of a trial. It is prohibited for the police to interview a person in the absence of a lawyer, unless the person has agreed to be interviewed without a lawyer. Police and prosecutors usually wait for some time for legal aid providers to arrive, but if it 82% takes too long, the questioning begins even in the absence of a legal aid lawyer. However, courts are strict about excluding evidence or statements made in the People who believe that the police absence of a legal aid provider. In certain situations, the police questions a per- always or often respects the basic rights of suspects son first as a witness, but this can be problematic as the police determines the WJP Rule of Law Index 2015 person to have a right to legal aid only after the witness has incriminated him/ herself. It is very common for pre-trial detention to be used, even when suspects have access to legal aid. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely than private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial’, or ‘giving advice to the suspect/de- fendant in private before any contact with a state justice official’. Furthermore, independent national experts identify, ‘the judge’s objective anal- ysis of evidence and testimony’ and ‘a well prepared and/or high skilled lawyer’ to be some of the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 414

415 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases While eligibility is determined by each jurisdiction, generally speaking, a person must meet a financial threshold. Legal aid is also provided based on the case’s gravity, complexity or case type, as identified in the law. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Child custody issues Property issues Marital issues Administrative matters Claims for State services or disputes with State agencies For what actions is a party eligible for legal aid? Legal aid is provided to assist with the drafting and filing of complaints and responses, with gaining access to State services, negotiations between parties and to avail victims of violence of protective services. Legal aid is also available to assist with mediation, pre-trial hearings, independent investigation, trial, draft- ing motions, and for any appeal or cassation. 415

416 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Estimated demand for legal aid Public interest litigation / class action cases: services in civil cases According to national experts, there is public demand for public interest liti- gation/class actions to address discrimination, labour rights, consumer rights, environmental protection, and health and social assistance. In certain circum- stances, staff lawyers coordinate to uniformly challenge common violations 35% of national and international due process rights and human rights at the regional level. From respondents How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 65% Court fees Attorney fees From complainants Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious According to independent national experts, women , more often than men, are Women’s access unaware that legal aid services are available at little or no cost, or may not know to legal aid services where to find legal assistance. Experts add that a considerable challenge faced by women in need of legal aid is that the means tests for eligibility to legal aid of- ten consider overall household income rather that the women’s income specif- ically, which tends to be significantly lower. Other issues which may explain why women may prefer not to seek out legal assistance include their low confidence in the quality of legal aid services provided to them, and the fact that they they can be quite time-consuming. 416

417 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group The justice system has specialized courts, judges, prosecutors, lawyers and po- Access to legal aid lice officers for child victims, child witnesses, and suspected or accused children. for children When representing children, legal aid providers routinely reach out to parents, social workers or other childcare professionals for support to assist the child throughout proceedings. In criminal cases, national experts observe that there is no noticeable differ- ence when children are represented by legal aid providers or by private lawyers, with regards to diversion away from judicial proceedings, alternatives to pre-trial detention and alternatives to imprisonment. However, national experts find that legal aid providers specialized in children’s rights perform better in these respects. In criminal cases where legal aid is provided to children, national experts find that legal aid providers strive to implement a number of child-friendly measures required by law, such as preventing the child from giving statements to the po- lice against his/herself, or preventing the disclosure of information about pend- ing charges to the child’s school, community or media. Informal justice proceedings typically handle disputes related to family and Legal aid and informal child custody, land and property, inheritance, informal contracts, labor agree- justice systems ments and minor criminal cases. There are mechanisms that allow cases to be referred between the formal and informal legal systems According to national experts, people may prefer to resolve disputes through informal justice proceedings because they understand better how they work, they take less time, and informal tribunals are more conveniently located (espe- cially for those living in remote areas.) People may also feel that informal pro- ceedings are more likely to lead to a negotiated outcome that is acceptable to all parties. To provide assistance in formal mediation/alternative dispute resolution pro- cesses, legal aid providers need a law degree, a paralegal certificate, a mediation training certificate or basic training on the matter. 80% Disputes resolved through formal mediation or alternative dispute resolution processes (2013) 417

418 Global Study on Legal Aid – Country Profiles Canada Western Europe and Others Group Quality safeguards Legal aid providers are obliged to adhere to ethical rules established by the bar Accountability for association, and to specific quality and performance standards established by the quality of legal each jurisdiction. aid services In criminal cases, legal aid institutions aim to ensure that the same provider represents the accused/suspect at all stages of the case. If no legal aid provider arrives or if a legal aid provider is unprepared or unqual- ified, the proceeding is postponed or a replacement legal aid provider is asked to represent the party. If a party is denied access to legal aid, s/he has a right to appeal that decision. Having an unprepared or unqualified legal aid provider may provide grounds for appealing a decision made under such circumstanc- es (and disciplinary actions may be taken against the unprepared or unquali- fied lawyer.) A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, due to having too many cases, due to lacking expertise in the law or skills required by a specific case, or due to a conflict of interest or incompatibility with the legal aid recipient. There are mechanisms to monitor the quality of legal aid services provided, Monitoring but they vary by jurisdiction since each jurisdiction is responsible for the admin- and data collection istration and delivery of legal aid services. At the national level, Statistics Canada, on the quality Canadian Centre for Justice Statistics (CCJS) conducts the Legal Aid Survey and of legal aid services collects aggregate legal aid data directly from provinces and territories, on an annual basis. 418

419 Cyprus Western Europe and Others Group Cyprus 1.154 million Population Unitary government system 67% 99% 98% 33% Urban population Male literacy rate Rural population Female literacy rate 0.971 $26,370 GNI per capita Gender Development Index 0.925 0.9 0.95 0.975 $4,126 $1,045 $12,736 MID/HIGH MID/LOW LOW MID/LOW MID LOW HIGH MID/HIGH HIGH -10.7% 0.758 0.850 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.8 0.55 0.55 0.7 0.8 0.7 HIGH MID LOW MID LOW HIGH VERY HIGH VERY HIGH

420 Global Study on Legal Aid – Country Profiles Cyprus Western Europe and Others Group Legal Aid at a Glance in Cyprus N/A Never conducted 2015 When was the last assessment Annual expenditure The latest reform of the legal aid of legal aid needs conducted on legal aid per capita in 2013 system was carried out in 2015 Priority areas for support Challenges in accessing legal aid Legislative drafting advice Lack of a centrally-organised legal aid system h People may not always know where to find legal assistance Development of action plans/policies h h People may think that legal aid lawyers are working as part Development of quality criteria for legal aid providers  Establishing paralegal systems of the police or of judicial agencies h People may not always understand how legal services  Institutional support can help them Training 420

421 Global Study on Legal Aid – Country Profiles Cyprus Western Europe and Others Group Legal framework The right to legal aid was introduced and recognized by the time of the estab- Right to legal aid lishment of the Republic of Cyprus in 1960. The right to legal aid is guaranteed in: The most recent reform of the legal aid system took place in 2015, when the 2 Constitution law was amended to extend the provision of legal aid to more categories of 2 Separate law on legal aid beneficiaries. The Ministry of Justice and the Parliament played an instrumental Criminal procedure code 2 role in introducing this reform. State-funded legal aid is available at national, regional and local levels. For both civil and criminal cases, legal aid is provided in the form of legal ad- Services included vice, legal representation (before a court), legal assistance, general assistance as part of legal aid with navigating the justice system, and assistance with the execution of legal documents. Specialized legal aid services are provided by the State for refugees, asylum seekers or stateless persons, non-nationals in cross-border disputes in all types of cases, European Union citizens and the members of their families, when lodg- ing a recourse before the Administrative Court for specific reasons according to the Law, victims of trafficking (including children) and for children who are vic- tims of sexual abuse and/or child pornography. The process for obtaining legal aid is initiated upon request from the person Process for obtaining who wants legal aid. While legal aid services are mainly provided based on legal aid financial need, relevant agencies also have the authority to determine that the interests of justice require the provision of legal, in view of the gravity of the case or other relevant circumstances. Eligibility criteria are not expressly provid- ed in the law; rather, the specific characteristics of a case will determine whether legal aid is required or not. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State more than to legal aid three years ago. The Ministry of Justice and Public Order issued an information leaflet containing all information about legal aid in plain language, as well as contacts to seek further information or clarification. This leaflet is also uploaded on the websites of the Ministry of Justice and Public Order. 421

422 Global Study on Legal Aid – Country Profiles Cyprus Western Europe and Others Group Delivery model The Ministry of Justice has responsibility over the legal aid legislation, while the Legal aid authority Supreme Court and the bar association have responsibility over the practical man- agement of the legal aid system. There is no institutional legal aid provider in Cyprus. Legal aid services in crim- Organisation inal cases are mainly organised through the bar association, which maintains of legal aid services a roster of lawyers who are willing to offer their services. A person entitled to legal aid can choose a legal aid lawyer from this list, or else the court will appoint one to her/him. Legal aid services are available in rural areas. The quality of legal aid services ulti- Accessing legal aid in mately depends on each individual legal aid provider. urban vs. rural areas Service providers Lawyers 1/384 N/A and other providers Licensed practicing Full-time /people lawyers legal aid lawyers /people University-based Paralegals law clinics Are not allowed to provide legal aid independently 422

423 Global Study on Legal Aid – Country Profiles Cyprus Western Europe and Others Group Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must also be members of the national bar and registered in a State-authorised roster of legal aid providers. Legal aid providers are not required to undertake continuing education or skills training, and the State does not allot funds to this effect. Finances Legal aid services are free of charge to those meeting eligibility criteria. Costs to recipients Legal aid is not a separate component of the annual justice system. Furthermore, Legal aid in the annual the State does not provide separate funding to cover the cost of specialized le- justice budget gal aid services for specific disadvantaged groups. Fees differ by types of hearings (e.g. first day of hearing, appeal), types of offence Payments to legal and before different courts. For other types of cases, such as family court cases, aid providers the fees are determined in the respective Procedural Regulations. Provision of legal aid Who is eligible? Legal aid in criminal cases In criminal cases, legal aid is available to persons arrested and detained on crim- inal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. According to the Legal Aid Law, the State is obliged to provide legal aid to any person (both national citizens and foreigners) who cannot bear the costs of the proceedings without affecting the basic needs and obligations of him/herself and his/her family. 423

424 Global Study on Legal Aid – Country Profiles Cyprus Western Europe and Others Group At what stage of a criminal case? Under the law, legal aid should be provided from the moment charges are offi- cially filed and during trial. 20- To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that the quality of services provided by 35% legal aid lawyers, when compared with services provided by private lawyers, is more or less the same, except that they perform less well when having to pre- Proportion of criminal court cases pare written motions and requests of the court, police or prosecution. (2013) Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’ and ‘strength of the ev- idence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 15.9 In 2013, the number of criminal cases filed in court was 15.9 times the number of civil cases filed in court Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who cannot bear the costs of the proceedings without affecting their basic needs and obligations (as well as those of their family). Estimated demand for legal aid 5 types of civil cases for which legal aid services are most services in civil cases commonly sought and for which State-funded legal aid is available 10% Child custody issues Administrative matters Marital issues From respondents Asylum cases Human rights For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be offered to assist with the drafting or filing of a complaint or a response, with 90% depositions or other official queries, and with negotiations between parties. From complainants Legal aid can also be provided throughout proceedings. 424

425 Global Study on Legal Aid – Country Profiles Cyprus Western Europe and Others Group Public interest litigation / class action cases: National experts are of the view that there is no demand for legal aid for public interest litigation/class action to address discrimination, labour rights, consum- er rights, environmental protection and health. According to national experts, women may not always understand how legal aid Women’s access services can help them or may not know where to find legal assistance. Experts to legal aid services add that a particular challenge faced by women relates to the financial criteria for eligibility to legal aid, which often considers overall household income rath- er than women’s (considerably lower) individual income. The low number of fe- male legal aid providers may also contribute to a perception that court process- es as biased against women. Female victims of violence (including victims of sexual and gender-based vio- lence) receive legal aid services in all legal proceedings, as well as court support services, such as interpretation and translation of documents. The justice system has specialized prosecutors and police units specifically ded- Access to legal aid icated to handling cases involving child victims (especially for cases of sexual for children abuses), child witnesses and suspected or accused children. When representing children, legal aid providers often reach out to parents, social workers and child welfare agency staff for support to assist the child through- out proceedings. In criminal cases involving suspected or accused children, diversion away from judicial proceedings is rarely used. >75% In 2013, in more than 75% of cases where a child was found culpable, an alternative to imprisonment was imposed Informal justice mechanisms allow for a lawyer to provide assistance in formal Legal aid and informal mediation and alternative dispute resolution processes, and there is a mecha- justice systems nism allowing for cases to be referred between the formal and informal justice systems. 425

426 Global Study on Legal Aid – Country Profiles Cyprus Western Europe and Others Group Quality safeguards If the legal aid beneficiary is not satisfied with the services provided by the law- Accountability for yer under the legal aid scheme, he or she can ask the Court to change the law- the quality of legal yer. In this case, the court proceedings are postponed until the change of the aid services lawyer takes place. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the Disciplinary Board, which handles complaints received from legal aid recipi- and data collection ents against legal aid providers. on the quality of legal aid services There are considerable data gaps across the justice system. For instance, data about children is not recorded separately, nor is data on cases which have re- ceived legal aid. 426

427 Finland Western Europe and Others Group Finland 5.464 million Population Unitary government system 84% 16% N/A N/A Rural population Female literacy rate Male literacy rate Urban population 0.996 $48,420 Gender Development Index GNI per capita 0.95 0.925 0.9 0.975 $4,126 $1,045 $12,736 HIGH MID/HIGH MID/LOW LOW MID/LOW MID LOW MID/HIGH HIGH -5.5% 0.834 0.883 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.8 0.55 0.7 0.7 0.8 0.55 LOW MID HIGH MID HIGH LOW VERY HIGH VERY HIGH

428 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Legal Aid at a Glance in Finland 2002 Never conducted $14.37 When was the last assessment Annual expenditure The latest reform of the legal aid of legal aid needs conducted system was carried out in 2002 on legal aid per capita in 2013 People who received legal People’s trust in courts when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 33 pay a debt, during the past 3 years 42 Some Citizen survey, WJP Rule of Law Index 2015 16 A Little 9 No Trust 25% 3 3 100 % 0% Sample size: 166 Priority areas for support Challenges in accessing legal aid Shortage of lawyers outside urban areas h Legislative drafting advice People may not always know where to find legal assistance h Development of action plans/policies h Low pay of lawyers for legal aid work Development of quality criteria for legal aid providers Establishing paralegal systems Institutional support Training 428

429 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Legal framework The right to legal aid was first recognized in 1973. Right to legal aid The most recent reforms of the legal aid system took place in 1998 and 2002. The right to legal aid is guaranteed in: The Ministry of Justice played an instrumental role in introducing these reforms. 2 Separate law on legal aid 2 Criminal procedure law State-funded legal aid is available at national, regional and local levels. 2 Implementing regulations for the law on legal aid For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation (before a court), legal assistance, general assistance with as part of legal aid navigating the justice system, and assistance with the execution of legal docu- ments and with the provision of legal information. Specialized legal aid services for disadvantaged population groups (such as per- sons with disabilities, indigenous populations, etc.) are not provided by the State. The process for obtaining legal aid is initiated upon request from the person Process for obtaining who wants legal aid, or upon request from the legal aid provider. The court pre- legal aid siding over a case must also inquire and assess eligibility during the first appear- ance of the parties. To prove eligibility to receive legal aid in civil and criminal cases, a person must submit evidence of low income, tax filing for the previous year, or documenta- tion stating that s/he meets financial or vulnerable criteria. However, no proof is necessary in situations where the State is obliged to provide legal aid under the law. No public information or awareness campaigns on the right to legal aid and Awareness of the right how to access legal services were conducted by the State in the recent past. to legal aid According to independent national experts, the general population is ‘some- what knowledgeable’ of the right to legal aid services and how and where to access legal aid services. 429

430 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Delivery model The Ministry of Justice has the chief responsibility for the management and admin- Legal aid authority istration of legal aid. Finland has State legal aid offices, staffed by public legal aid attorneys. Legal aid Organisation is also provided by private lawyers who are either members of the Finnish Bar of legal aid services Association or of other licensed legal councils. The institutional legal aid provider (public defender) works in parallel to State- funded private practitioners who take assignments to represent people eligi- ble for legal aid. In most cases, the applicant’s first contact is the lawyer of his or her choice, who Mechanism for then draws up the application for legal aid. The recipient of legal aid has a choice assigning legal aid of attorney in any court case: the client may choose to be assisted by a pub- providers lic legal aid attorney working at a State legal aid office, or by a private licensed attorney. In matters that are not to be brought before a court (e.g. provision of legal advice or drawing up of a document, such as an estate inventory or an agreed distribution of matrimonial property), legal aid is given only by public legal aid attorneys. In these situations, the recipient of legal aid cannot choose a private attorney, unless there is a special reason for proceeding otherwise. Legal aid services are available in rural areas. Accessing legal aid in urban vs. rural areas 430

431 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Service providers Lawyers 1/2,185 1/26,017 and other providers Licensed practicing Full-time lawyers legal aid lawyers /people /people University-based Paralegals law clinics Are not allowed to provide legal aid independently Legal aid providers must have a law degree and work experience. Members of Qualifications required the bar association are required to undergo periodic skills training or testing. The State allots funds towards continuing education and training for legal aid providers. Finances Primary legal aid services free of charge are made available by State legal aid of- Costs to recipients fices (which also offer legal advice by phone) and by civil society organisations. Legal aid services are free of charge only to those who meet eligibility criteria. Other parties using legal aid pay a percentage of the cost, according to a sliding scale of payment based on financial status, as established by law. 431

432 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Legal aid in the annual justice budget $14.37 Legal aid budget per capita in 2013 19% 156% The legal aid budget in 2013 accounted The legal aid budget increased for 156% of the annual budget for by 19% from 2010 to 2013. prosecution of criminal cases. Legal aid is a separate component in the annual justice budget. In criminal, civil and administrative cases, a large proportion of legal aid provid- Payments to legal ers work full-time in institutions funded by the State (e.g. public defenders’ of- aid providers fices). Others may also be paid on an hourly basis for actions that the State has identified as a basis of payment. As an alternative to an hourly fee, lawyers can also decide to be paid a minimum fee per case. Provision of legal aid Who is eligible? Legal aid in criminal cases In criminal cases, legal aid is to persons arrested and detained on crim- available inal charges, persons charged with a criminal offence, persons imprisoned on criminal charges, victims of crime and complainants (injured parties). The State is obliged to provide legal aid when the accused meets a financial threshold (a single person’s available means should be equal or less than 1300€/ month, 2400€ or less for a couple), faces a potential prison sentence (for a mini- mum of four months of imprisonment), is an asylum seeker, or according to the case’s gravity, complexity, or case type as identified in the law. 432

433 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group At what stage of a criminal case? Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspect’s/defendant’s freedom, during an identification procedure or a residence search, or at least from the moment charges are officially filed. Legal aid is also provided during trial, for any appeal or cassation, and for representation of prisoners in cases involving serious disci- plinary charges. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that there is no significant difference in <10% the quality of services provided by legal aid lawyers and private lawyers, except Proportion of criminal court cases in one instance: legal aid lawyers are more likely than private layers to advocate (2013) for alternative resolution of cases when the defendant is under 18 years of age. When asked about the most influential factors in reaching a dismissal of charg- es or acquittal in criminal cases, national experts refer to factors such as ‘a well prepared and/or highly skilled lawyer’, ‘having a legal aid lawyer’, ‘availability of an independent expert testimony’, and ‘the strength of the evidence’. How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases 91% Poor judicial decisions People who believe that the police Inadequate resources always or often respects the basic Inadequate criminal defence rights of suspects Corruption WJP Rule of Law Index 2015 Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious 433

434 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to citizens who meet a financial threshold (a single person’s available means should be equal or less than 1300€/month, 2400€ or less for a couple) or according to the case’s gravity, complexity, or case type, as identified in the law. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Child custody issues Administrative matters Family and inheritance law 8.9 In 2013, the number of civil and administrative cases filed in court was 8.9 times the number of Contractual disputes Labor disputes criminal cases Public interest litigation / class action cases: State-funded legal aid is not provided for public interest litigation and class action cases. Staff lawyers do not coordinate to uniformly challenge common violations of national and international due process rights and human rights. How serious are the following problems in influencing people’s decisions Estimated demand for legal aid on whether or not to go to civil courts to resolve a dispute, in the city services in civil cases where you live? according to national experts, WJP Rule of Law Index 2015 Court fees 25% Attorney fees Lack of legal aid From respondents Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption 75% Lack of awareness of remedies From complainants 3 3 Not very serious Very serious 434

435 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Female victims of violence (including victims of sexual and gender-based vio- Women’s access lence) receive legal aid services in all legal proceedings, as well as court support to legal aid services services, such as interpretation and translation of documents. The justice system does not have specialized divisions or personnel specifically Access to legal aid dedicated to handling cases involving children who are suspected or charged for children with criminal offence. When representing children, legal aid providers often reach out to parents and psychologists for support to assist the child throughout proceedings. In criminal cases involving suspected or accused children, diversion away from judicial proceedings is not used. Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative dispute resolution processes. justice systems There are mechanisms that allow referrals between the formal/statutory legal system and informal justice systems for formal mediation/alternative dis- pute resolution processes. Legal aid service providers can work across different systems. To qualify for formal mediation/alternative dispute resolution processes, legal aid providers need a law degree. Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the Accountability for provider is unprepared or unqualified, the proceedings must cease until a quali- the quality of legal fied legal aid provider arrives, but there are some limitations in place. aid services 435

436 Global Study on Legal Aid – Country Profiles Finland Western Europe and Others Group Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the Ministry of Justice, which collects and reviews data through assessments by and data collection justice actors and by conducting satisfaction questionnaires that legal aid recip- on the quality ients fill out. of legal aid services There remains significant data gaps across the system. For instance, no data is available on the number of criminal or civil cases filed in court where State- funded legal was provided, and data about children is not recorded separately. 436

437 Greece Western Europe and Others Group Greece 10.96 million Population Unitary government system 78% 98% 97% 22% Rural population Urban population Female literacy rate Male literacy rate 0.967 $22,680 Gender Development Index GNI per capita 0.975 0.95 0.925 0.9 $12,736 $4,126 $1,045 HIGH MID/HIGH LOW MID/LOW LOW MID MID/LOW HIGH MID/HIGH -12,4% 0.758 0.865 Loss in HDI due to inequality HDI Inequality-adjusted HDI 0.8 0.7 0.55 0.8 0.7 0.55 LOW LOW VERY HIGH MID MID HIGH HIGH VERY HIGH

438 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group Legal Aid at a Glance in Greece N/A Never conducted 2014 The most recent reform When was the last assessment Annual expenditure of the legal aid system on legal aid per capita in 2013 of legal aid needs conducted took place in 2014 People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 11 A lot pay a debt, during the past 3 years 43 Some Citizen survey, WJP Rule of Law Index 2015 27 A Little No Trust 19 59% 3 3 100 % 0% Sample size: 311 Priority areas for support Challenges in accessing legal aid Legislative drafting advice  h A general perception that it is more important to cover the Development of action plans/policies  cost of police, prosecutors and judges than to spend public Development of quality criteria for legal aid providers  funds on lawyers h Establishing paralegal systems There is a limited number of lawyers to provide legal aid Institutional support services and the bar association is reluctant to allow paralegals  to fill the gap of available lawyers Training People may not know where to find legal assistance h People may prefer to resolve issues outside the court system, h where legal aid has no role, partly because people lack confidence in the quality of legal aid services h When people ask for legal aid, it is not uncommon for state agencies to withhold assistance or to encourage them to 438 waive their right to such assistance

439 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group Legal framework The right to legal aid was first recognized in 1950. Right to legal aid The most recent reform of the legal aid system took place in 2014, when the The right to legal aid is guaranteed in: Parliament adopted Law No. 4274/2014 which limits the financial compen- 2 Separate law on legal aid sation that a legal aid provider can obtain in any given year to a maximum 2 Implementing regulations for of €15,000. Any lawyer who was paid more than this amount in the previous the law on legal aid year is excluded from the list of legal aid providers who can be appointed to Civil procedure code 2 2 Administrative law cases in the following year. This law was a response to concerns that some 2 Criminal procedure law lawyers were manipulating the appointment process to secure access to a large number of legal aid cases, and the payment of substantial sums of legal aid compensation. The Ministry of Justice and the Bar Association played an instrumental role in carrying out this reform. State-funded legal aid is available at the national level only. For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, provision of legal information, and legal assistance (before as part of legal aid national tribunals). Legal aid lawyers also provide general assistance in execut- ing legal documents. Specialized legal aid services are provided for disadvantaged population groups such as children, women, refugees, asylum seekers, and stateless persons. Legal aid is provided upon request from the person who wants legal aid, and in Process for obtaining cases of serious criminal offence, upon request from the courts. legal aid In both criminal and civil cases, a person must prove his/her eligibility by prov- ing status as a recipient of welfare or state subsidies, or by providing evidence of low income (if employed) and tax filing for the previous year. The State has never conducted a public information campaign to raise aware- Awareness of the right ness about the right to legal aid or how to access legal aid services. to legal aid Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 439

440 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Ministry of Justice which oversees and coordinates the legal aid appoint- ment mechanism and sets the national legal aid strategy and policy. In both criminal and civil cases, legal aid services are organised through com- Organisation petent courts and through pro bono schemes, which are promoted as means of legal aid services for more junior lawyers to practice and acquire experience. Courts and police have a roster of duty legal aid providers for a given day, and Mechanism for call them in the given order. assigning legal aid providers Generally, the quality of legal aid services depends on individual legal provid- Accessing legal aid in ers. However, independent national experts are of the view that it tends to be urban vs. rural areas better in urban areas, where legal aid providers have more independence to challenge actions of other justice actors. As explained by experts, in rural areas, legal aid providers often see other justice actors socially, which makes it difficult to oppose them in proceedings. 440

441 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group Service providers Lawyers 1/260 N/A and other providers Licensed practicing Full-time legal aid lawyers lawyers /people /people 1/5,143 University-based /people Paralegals law clinics Paralegals (or bailiffs) are allowed to draft legal documents in criminal, civil and administrative cases Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must also be members of the bar, and have completed an internship with a practicing lawyer, a judge or an- other State justice agency. Paralegals must pass a separate test to be hired as a staff member of the institu- tional legal aid provider. Legal aid providers are required to engage in continuing education or skills training. Finances Primary legal aid services are available free of charge at the courts to those Costs to recipients meeting eligibility criteria. The bar association maintains a roster of qualified lawyers available to provide legal advice at no cost. 441

442 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group Legal aid is a separate component in the annual justice system budget. The Legal aid in the annual budget for legal aid is determined by the Ministries of Finance and Justice. justice budget Specialized legal aid services (for disadvantaged population groups) are fund- ed through separate government funding and contributions from internation- al donors. The cost of additional services, such as independent investigations, experts, or clerical assistance, is not covered by the State. In both criminal and civil cases, legal aid providers receive a fixed fee for each ac- Payments to legal tion they take on a case. Lawyers submit reports on the legal aid provided to the aid providers agency authorised to issue payment. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, and victims of crime. The State is obliged to provide legal aid to persons who meet a financial thresh- old, children, and persons who potentially face a prison sentence. Legal aid is also provided depending on the case’s gravity, complexity, or case type, as identified in the law. At what stage of a criminal case? Under the law, legal aid is provided from the moment a State agency begins consideration of whether to impose pre-trial detention or restrictive measures, or at least from the moment charges are officially filed. It is also provided during trial and for any appeal or cassation. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that there is no difference in the quali- ty of services provided by legal aid lawyers, when compared with services pro- vided by private lawyers. 57% Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the People who believe that the police judge’s objective analysis of evidence and testimony’ and ‘strength of the ev- always or often respects the basic idence’ to be amongst the most influential factors in reaching a dismissal of rights of suspects WJP Rule of Law Index 2015 charges or acquittal in criminal cases. 442

443 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to children and adults who meet a financial threshold. 4 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Property issues Child custody issues Tort claims Labor disputes For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with drafting motions. Legal aid services in civil cases can also be provided throughout trial, and for any appeal or cassation. Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for strategic litigation, public interest litigation and class actions addressing labour rights, consumer rights, discrimination, environmental protection, and health issues. 443

444 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group Estimated demand for legal aid How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city services in civil cases where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid 50% Location of Courthouses From respondents Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness 50% of remedies 3 3 Very serious Not very serious From complainants Legal aid services are provided to female victims of violence (including victims of Women’s access sexual and gender-based violence) only in some legal proceedings. Court sup- to legal aid services port services (such as interpretation and translation of documents) are nonethe- less provided in all legal proceedings. According to national experts, a considerable challenge faced by women in ac- cessing legal aid is the lack of specialized services for women, as well as for fam- ily and civil matters, which would be particularly needed in a country where it is not socially ‘encouraged’ for women to seek legal aid. Experts add that the means tests for eligibility to legal aid often considers overall household income rather than a woman’s income specifically (which tends to be significantly lower). National experts note that women oftentimes are unaware that legal aid servic- es are available at little or no cost, or do not know where to find legal assistance. Experts also stress that women may prefer to resolve issues through the informal justice system or outside the court system, where legal aid has no role, because they see court processes as too time-consuming and biased against women. It may also be difficult for women to confide in a (generally male) legal aid provid- er and share intimate information related to a case. The justice system has specialized courts and judges, prosecutors, police officers Access to legal aid and units dedicated to handling cases involving child victims, child witnesses or for children suspected and accused children. 444

445 Global Study on Legal Aid – Country Profiles Greece Western Europe and Others Group The formal mediation/alternative dispute resolution processes allow cases to Legal aid and informal be referred between the formal/statutory legal system and the informal justice justice systems system. Quality safeguards If a person has a right to legal aid, but no legal aid provider is available, or the le- Accountability for gal aid provider is unprepared or unqualified, the proceedings must cease until the quality of legal a qualified legal aid provider arrives. This can be problematic however as there aid services are no formal means of assessing the preparedness or qualification of a legal aid provider. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient, if s/he has too many cases, lacks of expertise in the law or skills required by the specific case, or if there is incompat- ibility or a conflict of interest with the legal aid recipient. A legal aid provider can also refuse to take a case when s/he feels the pay is too little to justify the time s/he will spend on it. The quality of legal aid services is not being monitored; there is no systematic ef- Monitoring fort in place yet to collect data on the quality of legal aid services. and data collection on the quality There are considerable data gaps across the system. For instance, no data is avail- of legal aid services able on the number of criminal or civil cases filed in court where State-funded legal aid was provided. Data about children is not recorded separately, and no data is available on case resolution prior to a case’s transfer to court. 445

446 Israel Western Europe and Others Group Israel 8.215 million Population Unitary government system 98% 92% 8% Adult literacy rate Rural population Urban population 0.971 $35,320 GNI per capita Gender Development Index 0.9 0.95 0.925 0.975 $4,126 $12,736 $1,045 MID HIGH LOW MID/LOW MID/HIGH LOW MID/LOW HIGH MID/HIGH -13.4% 0.894 0.775 Inequality-adjusted HDI Loss in HDI due to inequality HDI 0.8 0.55 0.7 0.8 0.55 0.7 MID HIGH LOW LOW VERY HIGH MID HIGH VERY HIGH

447 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group Legal Aid at a Glance in Israel N/A More than 5 years ago 1995 The most recent major reform Annual expenditure When was the last assessment of the legal aid system took of legal aid needs conducted on legal aid per capita in 2013 place in 1995 Priority areas for support Challenges in accessing legal aid Legislative drafting advice h Low pay of lawyers for legal aid work Development of action plans/policies  There is little support among the population for spending h  Development of quality criteria for legal aid providers public funds to defend accused criminals h There is a limited number of lawyers qualified in specific  Establishing paralegal systems aspects of criminal and civil law outside urban areas Institutional support Insufficient funds allocated to legal aid h Training 447

448 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group Legal framework The right to legal aid in criminal proceedings was first recognized in 1965 with Right to legal aid the adoption of Criminal Procedure Law 5725-1965 which established the ob- ligation of courts to provide a lawyer to unrepresented defendants in certain The right to legal aid is guaranteed in: criminal cases. 2 Separate law on legal aid 2 Implementing regulations for Concerning legal aid in civil matters, the Legal Aid Law 1972-5732 was enact- the law on legal aid ed in 1972. Several amendments have since been legislated in order to broad- 2 Law on pretrial detention 2 Law on the penitentiary en eligibility for legal aid services in civil cases. Criminal procedure law 2 The most recent significant reform of the legal aid system took place in 1995, when Public Defender Law 5755-1995 established the Board of the Public Defender within the Ministry of Justice. State-funded legal aid is available at national, regional and local levels. In both criminal and civil cases, legal aid is provided in the form of legal Services included assistance and legal representation before courts and tribunals, and before the as part of legal aid Psychiatric Evaluation Committee. Additionally, in civil cases, legal aid lawyers provide legal assistance and repre- sentation before the Execution Office (under the auspices of the Enforcement and Collection Authority), legal information, legal advice and general assistance in navigating the justice system and in executing legal documents. Specialized legal services are provided, inter alia , to children, Holocaust survi- vors, victims of trafficking, psychiatric patients in forced hospitalization, biolog- ical parents in adoption procedures, families of victims of fatal crimes (murder and manslaughter), appeals in social security cases, childcare allowance cases involving parties living outside of the national territory, and whistle-blowers. Legal aid is provided upon request from the person who wants legal aid. In crim- Process for obtaining inal matters specifically, it can be provided upon request from the police or from legal aid the court presiding over a case, which must inquire and assess eligibility during the first appearance of the parties. The determination is automatic if the case and/or legal aid recipient qualifies for legal aid services. In both criminal and civil cases, a person must prove his/her eligibility by providing evidence of low income (if employed). In criminal cases, no proof is necessary when the State is obliged to provide legal aid under the law. In civil cases specifically, a person must provide evidence that his/her claim has merit. 448

449 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group In criminal matters, in some cases, legal aid is provided solely on the basis of the gravity of charges or potential outcomes; in others, it is provided on the basis of both the gravity of the case and financial need. Irrespective of these criteria, the courts can always decide to appoint a lawyer when it is in the interest of justice. The Legal Aid Administration advertises its services through publications and Awareness of the right public outreach with relevant bodies, such as social services and non-govern- to legal aid mental organisations. Independent national experts estimate that the general population is ‘somewhat knowledgeable’ about legal aid services. Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Legal Aid Administration and the Public Defender’s Office, both under the auspices of the Ministry of Justice. As required by the Public Defender Law, a ‘Board of the Public Defender’ is estab- lished to supervise the work of the Public Defender's Office. This Committee is con- stituted by five members: the Minister of Justice, a retired Judge of the Supreme Court appointed by the President of the Supreme Court, a criminal lawyer appoint- ed by the Israeli bar association, a criminal lawyers appointed by the Minister of Justice with the consent of the chair of the Israeli bar association, and a criminal law scholar. A mixed model of legal aid provision combines full-time lawyers employed by Organisation the State and private practitioners. State lawyers take up a small portion of cas- of legal aid services es and oversee the work of private lawyers. State agencies or non-governmental organisations contact the Legal Aid Mechanism for Administration which appoints qualified legal aid providers. assigning legal aid providers Legal aid services are available in both rural and urban areas. Accessing legal aid in urban vs. rural areas 449

450 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group Service providers Lawyers 1/144 N/A and other providers Full-time Licensed practicing lawyers legal aid lawyers /people /people Not applicable University-based Paralegals law clinics Are not allowed to operate independently Legal aid providers must have a law degree, have completed an internship with Qualifications required a State justice agency and show proof of passing a professional examination (bar examination). They must also be members of the bar association, be inter- viewed by and have a contractual relationship with the agency that oversees the administration of legal aid, and be registered in a State-authorised roster of legal aid providers. In civil matters specifically, legal aid providers must also demonstrate professional experience in the field in which they are to give legal advice or representation. To be hired as a staff member of the institutional legal aid provider, legal aid providers have to pass a separate exam. While the law does not explicitly require legal aid providers to engage in con- tinuing education or skill trainings, both the Legal Aid Administration and the Public Defender's Office organise mandatory regular trainings for all legal aid lawyers. 450

451 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group Finances Primary legal aid services free of charge are available at the offices of the pub- Costs to recipients lic defender and the Legal Aid Administration, at legal advice centres in cities and towns and prisons, and at the offices of civil society organisations. There are about sixty ‘information provision counters’ in cities (in prisons, hospitals, social affairs bureaus, various courts, etc.) where representatives of the Legal Aid Administration provide legal assistance. The bar association also maintains a ros- ter of qualified lawyers available to provide legal advice for free. Generally, legal aid services are free of charge for those meeting eligibility crite- ria. However, a legal aid recipient may be required to pay a minimal fixed fee to the State; this requirement can be waived in certain cases. The national budget for legal aid is determined by the Ministry of Finance. There Legal aid in the annual are no separate funding mechanisms to cover the costs of specialized legal aid justice budget providers’ services for disadvantaged population groups. The State does howev- er cover or contribute to the cost of additional services provided by indepen- dent investigators, independent experts, and psychological or social workers. Legal aid lawyers are either full-time salaried employees of the State or private Payments to legal practitioners. In both criminal and civil cases, private legal aid lawyers receive ei- aid providers ther a fixed fee for each case or a fixed fee for each action they take on a case, based on a report detailing each action taken. They can also be paid on an hour- ly basis for actions that the State has identified as a basis for payment. Generally, Legal Aid Regulations preset lawyers’ fees in civil cases. In certain circumstanc- es however, the particular nature of the legal aid assistance required for a given case may call for a case-specific fee. In criminal cases, some legal aid providers work in law firms that receive funds from the State. Such law firms sign contracts with the State agency overseeing appointments and receive payment for a set number of cases. 451

452 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, criminal legal aid is to persons arrested and detained available on criminal charges, persons charged with a criminal offence and persons who appear before parole boards. Legal aid is also available in certain proceedings to persons interrogated by a psychiatric evaluation board, to those against whom an extradition request was filed, and in cases specified in Section 18 of the Public Defender Law. Furthermore, courts maintain a broad discretion to appoint counsel as deemed required. The State is obliged to provide legal aid to persons who meet a financial thresh- old, children, and persons with physical or mental disabilities. Legal aid is also provided when it is required by the interests of justice or due to the case’s grav- ity, complexity, or case type, as identified in the law. At what stage of a criminal case? 40-60% Under the law, legal aid is provided from the moment a State agency begins Proportion of criminal court cases consideration of whether to impose pre-trial detention or restrictive measures, (2013) as well as during trial and a first appeal. The courts have broad discretion to ap- point a legal aid lawyer at whichever stage it is deemed necessary. To what extent are legal aid services in criminal cases seen as effective? According to independent national experts, legal aid lawyers are just as effec- tive as private lawyers in representing and advising clients. Independent nation- al experts identify ‘strength of evidence’ to be one of the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. Who is eligible? Legal aid in civil cases available when the legal merit of the case is Generally, legal aid in civil cases is established, and when the legal aid applicant meets a financial threshold, which consists of two tests: the income test (for an individual or a family of up to three persons, the income level should be no more than 67% of the national average monthly wage of US$1,635, with an additional 6% for every additional person in the household) and the property test (the applicant's realizable property, in- cluding savings, vehicles, etc., should not exceed triple the amount of the na- tional average wage). The property test does not apply to a residential dwelling or the property of a spouse or partner. 452

453 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group Estimated demand for legal aid Legal aid is provided regardless of the financial criteria in certain cases, when services in civil cases the law notes that the interests of justice require it. This applies to cases relat- ed to the National Insurance Institute, cases involving Holocaust survivors, whis- tle-blowers, psychiatric patients in forced hospitalization, biological parents in adoption procedures and trafficking victims, all of whom are exempt from the financial test. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 80% From respondents Marital disputes and Property issues Labour and contractual disputes child custody Issues 20% Dispute resolution Claims for State services or From complainants disputes with State agency proceedings or mediation For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with drafting and filing complaints and responses, as well as with drafting motions. Legal aid can also be provided throughout trial and for any appeal (in national and international tribunals) or cassation. Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for strategic litigation, public interest litigation and class actions addressing labour 1.12 rights, discrimination, and health issues, and the State provides legal aid for The number of civil and such cases. Staff lawyers of the institutional legal aid provider coordinate at the administrative cases filed in court in national level to uniformly challenge common violations of national and inter- 2013 was 1.12 times the number of criminal cases national due process rights and human rights. Legal aid advice and court support services are not provided automatically to fe- Women’s access male victims of violence (including victims of sexual and gender based violence), to legal aid services although women may be eligible for legal aid to appeal for restraining orders, prevention orders or the like. Such victims are also granted specific rights accord- ing to Crime Victims' Rights Law 5761-2001. 453

454 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group The justice system has specialized police officers / units and lawyers for repre- Access to legal aid senting child victims, child witnesses and suspected or accused children at the for children national level. When representing children, legal aid providers often reach out to parents, social workers and other childcare professionals for support to assist the child throughout proceedings. In civil matters, legal aid may be given to children in matters of status or in pro- ceedings according to the Youth (Care and Supervision) Law 5720-1960, either by means of a guardian or, where appropriate, a lawyer. Informal justice mechanisms allow a lawyer to provide assistance in formal me- Legal aid and informal diation/alternative dispute resolution processes. There are mechanisms that justice systems allow cases to be referred for formal mediation, and for referral of cases between the formal and informal justice systems. Informal justice proceedings are used for a wide range of civil cases, including marital or family disputes, child custody issues, inheritance disputes, informal contracts and labour agreements. To qualify for formal mediation/alternative dispute resolution processes, legal aid providers must have a law degree and be members of the bar association. Quality safeguards In criminal cases, if a person has a right to legal aid but no legal aid provider is Accountability for available, or the provider is unprepared or unqualified, the proceedings must the quality of legal cease until a qualified legal aid provider arrives. In unique (and extremely rare) aid services cases, if the court determines that the party did not receive proper representa- tion, the proceedings may be declared invalid. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to having too many cases, due to lack expertise in the law or skills required by the specific case, or due to a conflict of interest with the legal aid recipient. 454

455 Global Study on Legal Aid – Country Profiles Israel Western Europe and Others Group The quality of legal aid services is strictly supervised by the Public Defender's Monitoring Office and the Legal Aid Administration. and data collection on the quality Data for monitoring the quality of legal aid services is collected through the of legal aid services review of complaints by legal aid recipients about legal aid providers actions, through satisfaction surveys by legal aid recipients, and through the monitoring of services provided in court. 455

456 Italy Western Europe and Others Group Italy 61.34 million Population Unitary government system 99% 99% 69% 31% Rural population Female literacy rate Male literacy rate Urban population $34,270 0.964 GNI per capita Gender Development Index 0.975 0.95 0.925 0.9 $1,045 $4,126 $12,736 MID/LOW MID/HIGH LOW MID/LOW LOW HIGH MID HIGH MID/HIGH -11.5% 0.873 0.773 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.8 0.55 0.7 0.8 0.7 0.55 LOW LOW VERY HIGH MID HIGH MID HIGH VERY HIGH

457 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Legal Aid at a Glance in Italy N/A 2005 N/A Annual expenditure The latest reform of the legal aid When was the last assessment of legal aid needs conducted on legal aid per capita in 2013 system was carried out in 2005 People who received legal People’s trust in courts assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 6 pay a debt, during the past 3 years 36 Some Citizen survey, WJP Rule of Law Index 2015 A Little 35 No Trust 23 63% 3 3 0% 100 % Sample size: 219 Priority areas for support Challenges in accessing legal aid Legislative drafting advice h Limited number of lawyers in the country to cover legal aid   Development of action plans/policies needs h Development of quality criteria for legal aid providers  People sometimes do not understand how legal aid services  Establishing paralegal systems can help them h Institutional support People may not know where to find legal assistance or may not be aware that legal aid services are available at little or Training no cost h People sometimes lack confidence in the quality of legal aid services h The bar association may be reluctant to allow paralegals to fill the gap of available lawyers 457

458 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Legal framework The right to legal aid was first recognized in the 19th century. Right to legal aid The most recent substantial reform of the legal aid system took place in 2005. The right to legal aid is guaranteed in: The Ministry of Justice played an instrumental role in introducing this reform. 2 Constitution 2 Separate law on legal aid State-funded legal aid is available at national, regional and local levels. 2 Criminal procedure law In criminal cases, legal aid is provided in the form of legal advice, legal assistance, Services included legal representation, general assistance with navigating the justice system, and as part of legal aid assistance with the execution of legal documents. The State does not provide specialized legal aid services for specific population groups, but civil society organisations do, for children, women, migrants, refu- gees, asylum seekers and stateless persons. The process for obtaining legal aid is initiated upon request from the person Process for obtaining who wants legal aid. In criminal cases, the applicant must give his word that s/ legal aid he meets financial or vulnerability criteria. The applicant could also be asked by the judge/lawyer to provide documentary evidence that s/he meets eligibili- ty criteria. The State has not run a public information/awareness campaign on the right to Awareness of the right legal aid in recent years. Independent national experts estimate that the gener- to legal aid al population is ‘somewhat knowledgeable’ about legal aid services. 458

459 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Delivery model The Ministry of Justice has the chief responsibility for the management of legal aid. Legal aid authority Legal aid services in both criminal and civil cases are organised through panel Organisation appointments (ex officio, contract lawyers). of legal aid services Public defender institutions work in parallel to State-funded private law firms and non-governmental legal service institutions which take assignments from the legal aid administration. At regional and local levels, civil society organisa- pro bono tions, paralegals and volunteers also provide legal aid services, in co- ordination with the bar association and/or the legal aid administration. The legal aid applicant may autonomously choose a legal aid provider among Mechanism for those registered in a duty roster maintained by the legal aid administration. assigning legal aid Alternatively, courts, prosecutors, police and other State agencies can contact providers legal aid providers in the order listed on the duty roster when they receive noti- fication about a person in need of legal aid. In criminal cases, it takes 50 hours on average for a legal aid provider to appear after notice is given that legal aid is needed. The quality of legal aid services tends to be better in urban areas, but it also de- Accessing legal aid in pends on each individual legal aid provider. urban vs. rural areas 459

460 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Service providers Lawyers 1/248 N/A and other providers Licensed practicing Full-time /people legal aid lawyers lawyers /people University-based Paralegals law clinics Are not allowed to provide legal aid are only allowed to provide legal services independently. In both criminal and civil under the supervision of a faculty member cases, they are only allowed to provide or practicing lawyer general assistance in navigating the justice system Legal aid providers must have a law degree, must show proof of passing a Qualifications required professional examination, and have completed an internship with a practicing lawyer. They must also be members of the national bar and be registered in a State-authorised roster of legal aid providers. Legal aid providers are required by the State to engage in continuing education or skills training, but the State does not allot funds to this effect. To qualify for le- gal aid work with children, women, migrants, refugees, asylum seekers and state- less persons, legal aid providers are required to have specialized training. 460

461 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Finances The State covers all legal aid costs in criminal cases. Costs to recipients Primary legal aid services are available free of charge at the bar association, which maintains a roster of qualified lawyers available to provide free legal advice; at the office of the public defender; in legal advice centres in city and/or town administrative offices; and at the office of certain civil society organisations. The Ministry of Justice and the judiciary, as well as regional and local govern- Legal aid in the annual ments, determine the budget for legal aid, in consultation with the bar associa- justice budget tion and the legal aid administration. The government does not provide separate funding to cover the cost of special- ized legal aid services; such costs are covered by private companies and foun- dations. Additional services, such as independent investigations and experts, are covered by the State only in specific circumstances. Private legal aid lawyers usually provide services as needed on a part-time con- Payments to legal tractual basis with the legal aid administration. They typically receive a fixed fee aid providers for each action they take on a case, or can be paid on an hourly basis. Courts are in charge of disbursing payment to legal aid providers. 461

462 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases In criminal cases, legal aid is available to persons arrested and detained on crim- inal charges, persons charged with a criminal offence, persons imprisoned on criminal charges, victims of crime, persons under investigation, and persons (not necessarily the offender) who have a civil or administrative liability as a conse- quence of the offence. The State is obliged to provide legal aid to persons who meet a financial thresh- old. Legal aid is provided irrespectively of income for victims of specific catego- ries of violence (e.g. stalking, domestic abuse, rape, child pornography, etc.) At what stage of a criminal case? Under the law, a suspect or defendant is entitled to legal aid at every procedur- al stage of a criminal case, and for every action of the proceedings for which the Italian criminal code requires the mandatory presence of a lawyer. It is prohibited by law for the police to interview a suspect/defendant in the absence of a lawyer, unless the person is interviewed as a witness, and this is usually respected by the police in practice. Courts are strict about excluding evidence or statements made in the absence of a legal aid provider. It is somewhat common for pre-trial detention to be used even when suspects have access to legal aid services. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are less likely than private lawyers to perform action such as ‘giving advice to the suspect/defen- dant in private before any contact with a State justice official’, or ‘conducting in- vestigation to establish doubt about the suspect’s/defendant’s guilt even if the defendant may be guilty’. Meanwhile, experts estimate that there is no notice- able difference between the performance of legal aid lawyers and that of pri- vate lawyers with respect to ‘challenging the reliability of evidence against the suspect/defendant’, or ‘advocating for alternative resolution of the case when the defendant is under 18 years of age’. According to national experts, the most influential factors in reaching a dismiss- al of charges or acquittal in criminal cases are ‘a well prepared and/or highly skilled lawyer’, ‘a poorly prepared prosecutor’, ‘the judge’s objective analysis of evidence and testimony’, and ‘the strength of the evidence’. 462

463 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption 72% Judicial independence People who believe that the police Bias against marginalized people always or often respects the basic Inadequate ADRs rights of suspects WJP Rule of Law Index 2015 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases In civil cases, legal aid is available to persons who meet a financial threshold (around US$12,000) and to children. 4 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Child custody issues Marital issues Property issues Labor disputes For what actions is a party eligible for legal aid? Under the law, a person is entitled to legal aid during pre-trial hearings, independent investigations and trial, to assist with the drafting of motions, and for any appeal or cassation (including to international tribunals.) 463

464 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Estimated demand for legal aid Public interest litigation / class action cases: services in civil cases According to national experts, there is demand for legal aid for public interest litigation/class action addressing discrimination, labor rights, consumer rights, environmental protection and health. However, staff lawyers rarely coordinate to uniformly challenge common violations of national and international due process rights and human rights. 65% How serious are the following problems in influencing people’s decisions From respondents on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees 35% Attorney fees Lack of legal aid From complainants Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption 5.7 Lack of awareness In 2013, the number of civil court of remedies cases was 5.7 times higher than the 3 3 number of criminal court cases Very serious Not very serious According to national experts, the absence of specialized legal aid services for Women’s access women is a significant obstacle to women’s access to legal aid. Experts add that to legal aid services women often do not know where to find legal assistance or may not be aware that legal aid services are available at little or no cost. Women also may not understand how legal aid services can help them, or may lack confidence in the quality of legal aid services provided to them. For all of these reasons, and because court processes are time-consuming. women often prefer not to seek out legal assistance. Female victims of violence (including victims of sexual and gender based vio- lence) receive legal aid services in all legal proceedings, as well as court support services, such as interpretation and translation of documents. 464

465 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group The justice system has specialized courts, judges and prosecutors specifically Access to legal aid dedicated to handling cases involving child victims, child witnesses and sus- for children pected or accused children. When representing children, legal aid providers often reach out to parents, social workers, and psychologists for support to assist the child throughout pro- ceedings. In criminal cases involving suspected or accused children, diversion away from judicial proceedings is usually used. National experts observe that in criminal cases where children are represent- ed by legal aid providers, diversion and alternatives to pre-trial detention are achieved at a slightly lower rate than in cases where children are represented by private lawyers. Experts note however that there is no noticeable difference in performance regarding alternatives to imprisonment. Comparing cases where children are represented by legal aid providers special- ized in children’s rights, and cases where children are represented by non-spe- cialized legal aid providers, independent national experts observe that the use of diversion, alternatives to pre-trial detention, and alternatives to imprisonment are achieved at a higher rate. Informal justice proceedings typically handle marital or family disputes, land Legal aid and informal and property disputes, informal contracts and labor agreements. justice systems According to national experts, people prefer to resolve disputes through infor- mal justice proceedings because they take less time, and because informal tribu- nals are more conveniently located. Experts also note that people may believe that informal justice mechanisms are likely to lead to a negotiated outcome that is more acceptable to all parties. There may also be a sense amongst people that in informal justice proceedings, the wealthy and the poor are on equal footing. Informal justice mechanisms allow for a lawyer to provide assistance in formal 15% mediation/alternative dispute resolution processes. Legal aid providers need at least a mediation training certificate for formal mediation/alternative dispute Disputes resolved through formal mediation or alternative dispute resolution processes. resolution processes 465

466 Global Study on Legal Aid – Country Profiles Italy Western Europe and Others Group Quality safeguards Legal aid providers are obliged to adhere to ethical rules established by the bar Accountability for association. the quality of legal aid services If a person has a right to legal aid, but no legal aid provider is available, or the provider is unprepared or unqualified, the proceedings must cease until a quali- fied legal aid provider arrives. In both criminal and civil cases, if a party is denied access to legal aid, s/he has a right to appeal that decision. A legal aid provider can refuse to take a case, or ask to be removed from the duty to represent a particular legal aid recipient. In criminal matters, once a case is ap- pointed to a legal aid provider, legal aid institutions try to ensure that the same provider represents the accused/suspect at all stages of the case. There is no official mechanism to monitor the quality of legal aid services, which Monitoring is mainly monitored by civil society organisations. and data collection on the quality of legal aid services 466

467 New Zealand Western Europe and Others Group New Zealand 4.51 million Population Unitary government system 86% 14% N/A N/A Rural population Female literacy rate Male literacy rate Urban population $31,890 0.961 GNI per capita Gender Development Index 0.975 0.95 0.925 0.9 $1,045 $4,126 $12,736 MID/LOW MID/HIGH LOW MID/LOW LOW MID HIGH MID/HIGH HIGH N/A N/A 0.913 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.8 0.7 0.55 0.7 0.8 0.55 LOW LOW MID HIGH VERY HIGH HIGH MID VERY HIGH

468 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group Legal Aid at a Glance in New Zealand $21.50 More than 5 years ago 2013 Annual expenditure The latest reform of the legal aid When was the last assessment system was carried out in 2013 on legal aid per capita in 2013 of legal aid needs conducted. See the 2006 National Survey of Unmet Legal Needs and Access to Services People’s trust in courts People who received legal assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 49 A lot pay a debt, during the past 3 years 44 Some Citizen survey, WJP Rule of Law Index 2015 7 A Little No Trust 0 N/A 3 3 Sample size: N/A 100 % 0% Priority areas for support Challenges in accessing legal aid In some jurisdictions, there is a limited number of lawyers outside urban h Legislative drafting advice areas Development of action plans/policies h Lawyers are paid little for legal aid work (in the view of lawyers); generally, Development of quality criteria for legal aid providers covering the cost of police, prosecutors and judges is prioritized over Establishing paralegal systems spending public funds on lawyers to defend accused criminals Institutional support People may not always know where to find legal assistance, or may not h Training know that legal aid services are available at little or no cost  Learning and experience sharing on legal aid systems h People may lack confidence in the quality of legal aid services; some may around the world think that legal aid lawyers are working as part of the police, prosecutor or judicial agencies h When people ask for legal aid, it may sometimes happen that state agencies withhold assistance or encourage people to waive their right to legal aid 468

469 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group Legal framework The right to legal aid was first recognized in 1912 with the adoption of the Right to legal aid Justices of the Peace Amendment Act which made legal aid available for crim- inal offences. The right to legal aid is guaranteed in: Separate law on legal aid 2 The latest reform of the legal aid system took place in 2013, when the Parliament 2 Implementing regulations for adopted the Legal Services Amendment Act which adjusted the eligibility cri- the law on legal aid; teria and introduced a user charge for civil and family cases. The Act also intro- Law on judicial procedure; 2 2 Administrative law; duced initiatives to encourage prompt repayment of legal aid debt by those Laws on pre-trial detention; 2 who can afford to pay it. Criminal procedure law; Regulations addressing state 2 State-funded legal aid is available at national, regional and local levels. actors For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation (in all courts and some tribunals), legal assistance (before as part of legal aid national tribunals), and legal information. Legal aid lawyers also provide gener- al assistance in navigating the justice system and in executing legal documents. Specialized legal aid services are rarely provided by the State for disadvantaged population groups, except for children. Legal aid is provided upon request from the person who wants legal aid, Process for obtaining or upon request from a legal aid provider. legal aid To prove eligibility to legal aid, an applicant has to submit a mix of proofs, depending on the circumstances or type of legal assistance requested. In both criminal and civil cases, a person must prove her/his eligibility by proving sta- tus as a recipient of welfare or state subsidies, by demonstrating family hardship (e.g. multiple children, single parent, family member disability, etc.), by provid- ing evidence of low income (if employed, by providing tax filing for the previ- ous year) or membership of a protected group (e.g. migrants, children, displaced persons, refugees, etc.). Alternatively, the applicant’s word that s/he meets finan- cial or vulnerability criteria may be sufficient. In criminal cases specifically, the agency or official responsible for the appoint- ment of legal aid lawyers may also have to confirm that the interests of justice require provision of legal aid in a given specific case. In civil cases, proof that the legal aid applicant’s claim has merit may also be required. The Legal Services Commissioner can exercise discretion on cases that are borderline. 469

470 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group The State has never conducted any public information/awareness campaigns Awareness of the right on the right to legal aid or on how to obtain legal aid services. Independent na- to legal aid tional experts estimate that the general population is ‘somewhat knowledge- able’ about legal aid services. Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Ministry of Justice which, , oversees and coordinates the function inter alia of legal aid appointment mechanisms, safeguards the rights of legal aid recipients, establishes legal aid strategy and policy etc. In both criminal and civil cases, legal aid services are organised through the Organisation Legal Aid Services which operates in accordance with the Legal Services Act of legal aid services 2011 administered by the Ministry of Justice,under the control of two statutory officers: the Secretary for Justice and the Legal Services Commissioner. The Secretary for Justice is responsible for purchasing and managing high quality legal services. The Legal Services Commissioner ensures independence from the Secretary for Justice when making decisions on granting legal aid to individuals. The Legal Aid Services work in parallel to State-funded private practitioners who take assignments to represent people eligible for legal aid, sometimes though pro bono schemes. Legal aid providers are assigned through the Legal Aid Services which manages Mechanism for a roster system of legal aid providers for minor criminal cases. For major criminal assigning legal aid cases and for all civil cases, the applicant may select a legal aid provider by her/ providers himself. There are also legal aid providers on duty in courts and police precincts. It usually takes more or less three days for a legal aid provider to appear after no- tice is given that legal aid is needed in a criminal case. 470

471 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group Legal laid services are available in both rural and urban areas. In very isolated ru- Accessing legal aid in ral areas, the Legal Aid Services make sure to assign a legal aid provider who is urban vs. rural areas prepared to travel to rural courts, and provide financial assistance towards her/ his travel costs. Although the quality of legal aid services generally depends on each individu- al legal provider, it tends to be higher in urban areas, where legal aid providers have more independence to challenge the actions of other justice actors. Service providers Lawyers 1/375 1/2,373 and other providers Licensed practicing Full-time /people lawyers legal aid lawyers /people University-based Paralegals law clinics Legal aid providers must have a law degree, a professional license and must Qualifications required show proof of passing a professional examination (bar examination). They must also be members of the national bar, have a contractual relationship with the agency that oversees the administration of legal aid, be registered with a State- authorised roster of legal aid providers, and have professional experience as specified in the schedule of the Quality Assurance Regulations. All legal aid providers are required by the legal aid administration and the State to engage in continuing education and/or skills training. Specialized training is required to qualify for work with specific disadvantaged population groups, such as persons with disabilities, children, refugees, etc. The cost of such educa- tion and training is not covered by the State. 471

472 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group Are community paralegals recognized by law? Paralegals Grassroots Legal Advocates, Namati 2016 Yes, community paralegals in the form of community workers are recognized by law. Community legal services are provided by 24 community law centres across the country. Most community law centres employ lawyers and parale- gals or community workers; some also have volunteer lawyers and law students. Does any public revenue fund paralegals? Yes, public revenue does fund paralegals or community workers. The Ministry of Justice funds community law centres to provide legal services including legal information and education, legal advice, assistance and representation for those who cannot afford to pay for such services. The funding has traditionally come from the Lawyers and Conveyancers Special Fund, which is derived from inter- est earned on lawyers’ trust accounts. The government recently added addition- al funding due to low returns. Can paralegals engage in litigation (with or without the help of lawyers)? Yes. While community paralegals cannot appear in court with or without the help of lawyers, they may engage in other stages of the litigation process. They can provide legal advice, assistance, and representation so long as they have the appropriate level of knowledge and expertise required to resolve the legal mat- ter. Where they do not have this expertise, their work is supervised. Are there boards that monitor community paralegals? Yes, community paralegals are monitored in accordance with the Ministry of Justice’s national performance standards. All community law centres are re- quired to meet these standards. Finances Primary legal aid services are available free of charge at the offices of the Police Costs to recipients Detention Legal Assistance Service and the Family Legal Advice Service. Duty lawyers are also available at District Courts to assist unrepresented people ap- pearing in court on any given day, or to assist applicants in completing their le- gal aid application form. 472

473 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group The costs of legal aid services in both criminal and civil cases are covered by the State for those meeting eligibility criteria. This assistance takes the form of a loan from the State, which in approximately 80% of cases is written off due to hard- ship. For certain cases, the loan does not have to be repaid (e.g. in domestic vi- olence cases). There are also set fees for certain actions (e.g. in most civil cases, there is a $50 user charge if the applicant is approved for legal aid). Legal aid in the annual justice budget $21.50 Legal aid budget per capita in 2013 0.06% 2010/11 - 2013/14 The annual legal aid budget increased by 0.06% from 2010/11 to 2013/14 Legal aid is a separate component in the annual justice system budget. The na- tional budget for legal aid is determined by the Ministry of Justice. There is no separate funding mechanism to cover the cost of specialized legal aid services for specific population groups. Additional services, such as independent inves- tigation, forensic expertise and psychological or social work support, are some- times covered by the State. In both criminal and civil cases, legal aid providers receive a fixed fee for each ac- Payments to legal tion they take on a case and report to the agency authorised to issue payment. aid providers They can also be paid on an hourly basis for actions that the State has identified as a basis for payment. In criminal cases specifically, legal aid providers work full- time in institutions funded by the State. 473

474 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. to provide legal aid to persons with intellectual/mental dis- obliged The State is abilities, persons who face a potential prison sentence (6 months or more), and persons who meet a financial threshold. Legal aid is also provided when it is re- 20- quired by the interests of justice or due to the case’s gravity, complexity, or case type, as identified in the law. 35% At what stage of a criminal case? Proportion of criminal court cases Under the law, qualified legal assistance may be requested from the moment (2013) a State agency begins consideration of whether to impose pre-trial determina- tion or restrictive measures, or at least from the moment charges are officially filed. It is also provided whenever a person is confined in police custody or oth- 7.2 er State facility, and during a search of the suspect’s/defendant’s residence. Legal In 2013, the number of criminal aid is offered during trial, for any appeal or cassation, as well as for representa- cases filed in court was 7.2 times tion of prisoners in cases involving serious disciplinary charges, or for consid- higher than the number of civil eration of probation or social rehabilitation/reintegration matters, after release cases filed in court from prison. It is prohibited by law for the police to interview someone in the absence of a lawyer from the moment the person is officially suspected or accused, unless the person waives this right, or if s/he is interviewed as a witness. This can be problematic as the police sometimes determine the person to have a right to legal aid only after the witness has incriminated him/herself. In practice, the police and/or prosecutors usually wait some time for a legal aid provider to arrive, but if it takes too long, the questioning begins even in the ab- 35% sence of a lawyer. It is not uncommon for pre-trial detention to be used even In 2013, State-funded legal aid was when suspects have access to legal aid services. provided in roughly 35% of criminal cases 474

475 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group To what extent are legal aid services in criminal cases seen as effective? 1.5% Independent national experts estimate that legal aid lawyers are less likely than In 2013, 1.5% of all criminal cases private lawyers to give advice to the suspect/defendant in private before any filed in court were acquitted after contact with a state justice official. Furthermore, experts identify ‘a well-prepared trial and/or highly skilled lawyer’, ‘a poorly prepared prosecutor’, ‘the judge’s objec- tive analysis of evidence and testimony’, ‘availability of an independent expert testimony’, and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption 100% Judicial independence People who believe that the police Bias against marginalized people always or often respects the basic Inadequate ADRs rights of suspects WJP Rule of Law Index 2015 3 3 Very serious Not very serious 475

476 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold (it is a sliding scale based on the applicant’s income and dependents: US$14,859 if single, and up to US$46,053 if the applicant has a partner/spouse and up to five children. US$4,260 is added onto the maximum threshold for each additional child.) It is also available to children, persons with intellectual/mental disabilities and refugees, provided that the case satisfies a merit test. Legal aid is also pro- vided when it is required by the interests of justice or due to the case’s gravity, complexity, or case type, as identified in the law. 5 types of civil cases for which legal aid services are most Estimated demand for legal aid services in civil cases commonly sought and for which State-funded legal aid is available Contractual disputes Child custody issues Property issues 30% and marital disputes From respondents Dispute resolution Administrative matters and proceedings or claims for State services or mediation disputes with State agencies Legal aid is also commonly sought for domestic violence and mental health cas- 70% es, but legal aid is not available for these types of cases. From complainants For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be of- fered to assist with drafting and filing complaints and responses, conducting negotiations between parties, and drafting motions. Legal aid can also be pro- vided for mediation and pre-trial hearings, during trial, and for any appeal or cassation. Public interest litigation / class action cases: In New Zealand, legal aid is only available to individuals, not groups (except for 10% representatives of Maori groups in Waitangi Tribunal cases). Nonetheless, inde- pendent national experts are of the view that there is public demand for pub- In 2013, State-funded legal aid was provided in roughly 10% of civil and lic interest litigation and class action cases addressing labour rights, discrimi- administrative cases nation, and health. 476

477 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? According to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Not very serious Very serious Female victims of violence (including victims of sexual and gender-based vio- Women’s access lence) receive legal aid (as well as court support services) only in some legal pro- to legal aid services ceedings. It must however be stressed that legal aid services are provided to all victims, regardless of gender, and as such, there are no specialized legal aid ser- vices for women. National experts explain that one significant challenge faced by women in need of legal aid is that means tests for eligibility to legal aid often consider overall household income rather than the women’s income specifically (which tends to be considerably lower.) Experts add that women are often unaware that legal aid services are available at little or no cost, and they sometimes do not understand how legal aid services can help them. The justice system has specialized courts, judges, lawyers and paralegals work- Access to legal aid ing with child victims, child witnesses, and suspected or accused children. When for children representing children, legal aid providers routinely reach out to parents, psychol- ogists and other childcare professionals for support to assist the child through- out proceedings. 477

478 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group As required by the legal framework, legal aid providers representing children are mindful to respect a number of child-friendly measures, such as preventing the child from giving statements to the police against his/her interests, preventing the disclosure of information about pending charges to the child’s school, com- munity or media, exploring diversion and alternative measures to prevent pre- trial detention and/or deprivation of liberty if the child is found culpable, and ensuring that a child held in custody is separated from adult detainees. >50% Acting at their own initiative, legal aid providers also ensure the presence of par- In more than 50% of cases when ents at all times, comfortable and child-friendly surroundings for meetings with children are suspected or charged with a criminal offence, the case is justice officials, and limitation of the number of interviews with the child. diverted from the formal justice system without trial (e.g. through mediation, a warning, or an apology) Informal justice proceedings are typically used to resolve disputes related to Legal aid and informal family and child custody issues, land and property, inheritance, and informal justice systems contracts and labour agreements. Informal justice mechanisms allow a lawyer to provide assistance in formal me- diation/alternative dispute resolution processes, and there are mechanisms that allow cases to be referred between the formal and informal justice systems. To qualify for formal mediation/alternative dispute resolution processes, legal aid providers must have a law degree. 478

479 Global Study on Legal Aid – Country Profiles New Zealand Western Europe and Others Group Quality safeguards Legal aid providers are required to adhere to specific quality and performance Accountability for standards, as well as ethical rules, established by the bar association. the quality of legal aid services In both criminal cases and civil cases, if a party is denied access to legal aid, that party has a right to appeal that decision. If no legal aid provider arrives, or if a le- gal aid provider is unprepared or unqualified, the proceeding is postponed, or a replacement legal aid lawyer is asked to represent the party. The Legal Aid Services has a customer complaints mechanism that can be used if a client feels that his/her provider is unprepared. All complaints are investigated and if neces- sary, the Legal Aid Services contact the New Zealand Law Society to refer a com- plaint for further investigation, and a regulatory outcome can be applied. A legal aid provider appointed to a case almost always remains on that case until the case is resolved in the court of first instance. A legal aid provider can refuse to take a case, or ask to be removed from a case, due to having too many cases, due to lacking expertise in the law or skills required by the specific case, or due to a conflict of interest with the legal aid recipient. The Legal Aid Services operate a quality assurance framework which includes Monitoring a complaints investigation mechanism and annual audits of the quality of le- and data collection gal aid services provided by lawyers. Data for monitoring the quality of legal aid on the quality services is also collected through satisfaction questionnaires filled by legal aid of legal aid services recipients. 479

480 Portugal Western Europe and Others Group Portugal 10.4 million Population Unitary government system 63% 96% 93% 37% Rural population Urban population Female literacy rate Male literacy rate $21,360 0.985 GNI per capita Gender Development Index 0.975 $1,045 $4,126 $12,736 0.925 0.95 0.9 LOW MID/LOW MID/HIGH MID LOW MID/HIGH MID/LOW HIGH HIGH -10.4% 0.744 0.830 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.7 0.8 0.8 0.7 0.55 0.55 LOW LOW VERY HIGH VERY HIGH MID MID HIGH HIGH

481 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group Legal Aid at a Glance in Portugal 2015 2007 N/A When was the last assessment The latest reform of the legal aid Annual expenditure system was carried out in 2007 on legal aid per capita in 2013 of legal aid needs conducted The last assessment was conducted in May 2015 People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 9 A lot pay a debt, during the past 3 years Some 46 Citizen survey, WJP Rule of Law Index 2015 33 A Little 12 No Trust 58% 3 3 Sample size: 140 0% 100 % Priority areas for support Challenges in accessing legal aid People may not know where to find legal assistance h N/A h The legal aid work flow could be improved to be swifter 481

482 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group Legal framework The right to legal aid was first recognized in 1899. Right to legal aid The latest reform of the legal aid system took place in 2007, when Law No. The right to legal aid is guaranteed in: 47/2007 was adopted to enhance access to justice in cross-border disputes Constitution 2 by establishing minimum common rules relating to legal aid for such disputes. 2 Separate law on legal aid 2 Orders implementing the law State-funded legal aid is available at national, regional and local levels. and Statutes of the Portuguese Bar Association For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation, legal assistance (before national tribunals), and provision of as part of legal aid legal information. Legal aid lawyers also provide general assistance in navigating the justice system and in executing legal documents. Specialized legal aid services are not provided to disadvantaged population groups. Legal aid is provided upon request from the person who wants legal aid, or Process for obtaining upon request from the prosecutor or the legal aid provider. legal aid In both criminal and civil cases, a person must prove her/his eligibility by prov- ing status as a recipient of welfare or state subsidies, by demonstrating family hardship (e.g. multiple children, single parent, family member disability, etc.) or by providing evidence of low income (if employed, e.g. tax filing for the previ- ous year.) The State has never conducted any public information/awareness campaign on Awareness of the right the right to legal aid or on how to obtain legal aid services. to legal aid Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 482

483 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group Delivery model The policy for the management and administration of legal aid rests with the Legal aid authority Ministry of Justice and the bar association which, oversee and coordinate the le- gal aid appointment mechanism, establish the national legal aid strategy and poli- cy (based on a review of data on legal aid services), and set performance standards for the delivery of legal aid. In both criminal and civil cases, legal aid services are organised through the bar Organisation schemes. association. Legal aid is also provided through pro bono of legal aid services The courts and the police have a roster of duty legal aid providers for a Mechanism for given day, and call them in the given order. They can also contact the bar as- assigning legal aid sociation, which coordinates the appointment of lawyers and the delivery of providers legal aid services. Usually, it takes about one hour for a legal aid provider to appear after notice is given that legal aid is needed in a criminal case. Legal aid services are available in both rural and urban areas. The quality of le- Accessing legal aid in gal aid services depends on each individual legal aid provider, under the Bar urban vs. rural areas Association supervision. 483

484 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group Service providers Lawyers 1/308 N/A and other providers Full-time Licensed practicing lawyers legal aid lawyers /people /people Not applicable University-based Paralegals law clinics Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must also be members of the national bar and have completed an internship with a practicing lawyer. Legal aid providers are not required to engage in continuing education and/or skills training. However, if a lawyer undergoes training at his/her own initiative, the State allots funds to cover the cost of such training. Finances Primary legal aid services are available free of charge at legal advice centres in Costs to recipients cities and towns, as well as at the bar association which maintains a roster of qualified lawyers available to provide legal advice. Legal aid services are free of charge to those meeting eligibility criteria. In cer- tain circumstances, a legal aid recipient may be required to pay a percentage of the cost, as determined by a sliding scale of payment, based on the financial sta- tus of the legal aid recipient. 484

485 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group There is no separate component on legal aid in the annual justice system bud- Legal aid in the annual get. The national budget for legal aid is determined by the Ministry of Justice. justice budget There is no separate funding mechanism to cover the cost of specialized legal aid services provided to specific population groups. Additional services, such as independent investigation, experts and clerical assistance, are not covered by the State. Legal aid lawyers do not provide legal aid on a full-time basis. In both criminal Payments to legal and civil cases, legal aid providers receive a fixed fee for each case or for each aid providers procedural action that a State agent witnesses and approves in writing. Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, persons imprisoned on crimi- nal charges, victims of crime and witnesses. The State is obliged to provide legal aid to persons who meet a financial thresh- old, children, and persons with physical and intellectual/mental disabilities. 10- At what stage of a criminal case? Under the law, qualified legal assistance may be requested from the moment 25% a person is formally considered a suspect, i.e. when s/he gets the procedural sta- Proportion of criminal court cases ’. tus of ‘ arguido (2013) In Portugal, it is prohibited by law for the police to interview a person in the ab- sence of a lawyer, unless the person is interviewed as a witness. To what extent are legal aid services in criminal cases seen as effective? Comparing the services of legal aid providers to services of private lawyers, independent national experts estimate that there is no significant difference in the quality of services provided by legal aid lawyers and private lawyers, except for certain actions. For instance, when compared with private lawyers, experts 82% estimate that legal aid providers are less likely to give advice to the suspect/de- People who believe that the fendant in private before any contact with a State justice official, and less like- police always or often respects ly to conduct investigations to establish doubt about the suspect/defendant’s the basic rights of suspects guilt even if this person may be guilty. WJP Rule of Law Index 2015 485

486 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group Furthermore, national experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘a poorly prepared prosecutor’, and ‘the judge’s objective analysis of evidence and testimony’ to be amongst the most influential factors in reaching 20% a dismissal of charges or acquittal in criminal cases. In 2013, roughly 20% of criminal cases filed in court were acquitted after trial How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold. Estimated demand for legal aid 5 types of civil cases for which legal aid services are most services in civil cases commonly sought and for which State-funded legal aid is available Marital disputes and Labor disputes Property issues child custody issues Administrative matters and Contractual disputes 100% claims for State services or disputes with State agencies From respondents For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be offered to assist with drafting and filing complaints and responses, gaining 0% access to State agencies, and drafting motions. Legal aid can also be provided for mediation, during trial, and for any appeal or cassation. From complainants 486

487 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group Public interest litigation / class action cases: 6.4 State experts are of the view that there is public demand for public interest lit- In 2013, the number of civil and igation and class action cases to address discrimination, labour rights, consum- administrative cases filed in court er rights, environmental protection or health issues. was 6.4 times higher than the number of criminal cases How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? According to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees Lack of legal aid Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious There are no specialized legal aid services for women. Female victims of violence Women’s access (including victims of sexual and gender-based violence) do not receive specific to legal aid services legal aid services or court support services in legal proceedings. According to national experts, a significant challenge faced by women in need of legal aid is that the means tests for eligibility to legal aid often consider over- all household income rather than the women’s income specifically (which is often considerably lower). Furthermore, experts note that women may not al- ways know that legal aid services are available at little or no cost, and may not understand how legal aid services can help them. They may also be reluctant to seek out legal assistance, especially when they see court processes as too time-consuming. 487

488 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group While there are no specialized legal aid services for children, children are always Access to legal aid represented by lawyers, in court. The justice system has specialized courts, judg- for children es and prosecutors for child victims, child witnesses, and suspected or accused children. However, when representing children, lawyers rarely reach out to child- care professionals for support to assist the child throughout the proceedings. In criminal proceedings involving suspected or accused children, diversion away from judicial proceedings is occasionally used. >75% In more than 75% of cases where a child was found culpable, an alternative to imprisonment was imposed (2013) National experts explain that people sometimes prefer to resolve disputes Legal aid and informal through informal justice proceedings because they are less time-consuming. justice systems Informal justice mechanisms allow a lawyer to provide assistance in formal me- diation/alternative dispute resolution processes, and there are mechanisms that allow cases to be referred between the formal and informal justice systems. To qualify for formal mediation/alternative dispute resolution processes, legal aid providers must have a law degree. Quality safeguards When a legal aid provider is unprepared or unqualified, or when no legal aid Accountability for provider arrives, the proceeding is postponed or a replacement legal aid provid- the quality of legal er is asked to represent the party. It should however be noted that there is no aid services formal means of assessing the level of preparedness or the qualifications of a le- gal aid provider. 488

489 Global Study on Legal Aid – Country Profiles Portugal Western Europe and Others Group A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to having too many cases, or due a conflict of interest or incompatibility with the legal aid recipient. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the Ministry of Justice, the bar association, the judiciary, and the prosecution and data collection office. Data is collected through assessments by justice actors and through the on the quality monitoring of court services. of legal aid services 489

490 Spain Western Europe and Others Group Spain 46.4 million Population Unitary government system 99% 97% 79% 21% Rural population Female literacy rate Male literacy rate Urban population $29,440 0.975 GNI per capita Gender Development Index 0.975 0.95 0.925 $1,045 $4,126 $12,736 0.9 MID/LOW MID/HIGH LOW MID/LOW MID/HIGH MID LOW HIGH HIGH -11.5% 0.876 0.775 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.8 0.55 0.7 0.8 0.55 0.7 LOW LOW VERY HIGH MID HIGH MID HIGH VERY HIGH

491 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group Legal Aid at a Glance in Spain 2013 Never conducted $3.16 Annual expenditure The latest reform of the legal aid When was the last assessment on legal aid per capita in 2013 system was carried out in 2013 of legal aid needs conducted People’s trust in courts People who received legal when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 8 A lot pay a debt, during the past 3 years Some 35 Citizen survey, WJP Rule of Law Index 2015 A Little 35 No Trust 22 57% 3 3 Sample size: 176 100 % 0% Challenges in accessing legal aid Priority areas for support h Low pay of lawyers for legal aid services Legislative drafting advice People may not be aware that legal aid services are available h Development of action plans/policies at little or no cost Development of quality criteria for legal aid providers Establishing paralegal systems Covering the cost of police, prosecutors and judges tends to h  Institutional support be prioritized over spending public funds on lawyers People sometimes lack confidence in the quality of legal aid Training h services People may not always know where to find legal assistance h 491

492 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group Legal framework The right to legal aid was first recognized in 1978, in article 119 of the Right to legal aid Constitution, and reaffirmed in the Law on Legal Aid No.1/1996. The right to legal aid is guaranteed in: The latest reform of the legal aid system took place in 2013 with the implemen- 2 Constitution tation of Royal Decree-Law 3/2013 amending the regime of fees in the admin- 2 Separate law on legal aid istration of justice and the free legal assistance system. The Ministry of Justice, Implementing regulations for 2 the legislative branch and the bar association played an instrumental role in the law on legal aid 2 Law on the prosecution introducing this reform. Law on judicial procedure 2 Law on police 2 State-funded legal aid is available at national, regional and local levels. 2 Law on the judiciary 2 Civil procedure code 2 Administrative law 2 Law on pre-trial detention Law on penitentiary 2 2 Criminal procedure law For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation (before courts of justice), legal assistance, and provision of as part of legal aid legal information. Legal aid lawyers also provide general assistance in navigat- ing the justice system and in executing legal documents. Specialized legal aid services are provided to disadvantaged population groups, including persons with disabilities, children, women, victims of gender-based vi- olence, migrants, refugees, asylum seekers and stateless persons. 492

493 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group Legal aid is provided upon request from the person who wants legal aid. Free Process for obtaining legal assistance has to be requested before the bar association from the place legal aid where the competent judge or court hears the case for which free legal assis- tance is requested, or before the judge at the place of residence of the applicant (art. 12 of Law on Legal Aid No.1/1996). In both criminal and civil cases, a person must prove her/his eligibility by proving low income, i.e. a gross income (calculated by family unit) below the following threshold: a) twice the public income index (IPREM) for people who are single; b) twice and a half the IPREM for people who belong to a family of less than 4 members; c) triple the IPREM for people who belong to a family of 4 or more members (art.3 Law on Legal Aid No. 1/1996). In 2015, IPREM was set at US$7,850. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State since 2012, and to legal aid provided specific contact details of relevant offices to go for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the bar association and the Commission on Free Legal Assistance which, inter alia, oversees and coordinates the legal aid appointment mechanism, and estab- lishes performance standards for the effective delivery of legal aid. The Commission on Free Legal Assistance is composed of members of the bar as- sociation and of representatives of the Ministry of Justice, prosecutors and court agents, all appointed by the Executive and the bar association. In both criminal and civil cases, legal aid services are organised through the bar Organisation association, through pro bono schemes, and through institutional legal aid pro- of legal aid services viders. The latter coordinate appointments of private practitioners ( ex officio , or panel appointments) to legal aid cases. 493

494 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group The bar association maintains a roster of lawyers who can provide legal aid Mechanism for services. assigning legal aid providers Usually, it takes about 8 hours for a legal aid provider to appear after notice is given that legal aid is needed in a criminal case. Free legal assistance is guaranteed in rural areas through the judicial districts Accessing legal aid in of the bar associations. Although the quality of legal aid services generally urban vs. rural areas depends on each individual provider, it tends to be higher in urban areas. Service providers Lawyers N/A 1/1,092 and other providers Licensed practicing Full-time lawyers /people legal aid lawyers /people Not applicable University-based Paralegals law clinics There are no paralegals in Spain Legal aid providers must have a law degree and must show proof of passing a Qualifications required professional examination (bar examination). They must also be members of the bar association and have practiced as a lawyer for at least three years. The requirement to undergo periodic skills training and periodic testing is im- posed by the bar association on its members. The State however does not allot funds to this end. 494

495 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group Finances To receive primary legal aid services free of charge, the interested party needs to Costs to recipients contact the bar association which maintains a roster of qualified lawyers avail- able to provide legal advice for free. Legal aid services are free of charge to those meeting eligibility criteria. Art. 36 of the Law on Legal Aid 1/1996 establishes that if the sentence that ends the pro- ceedings orders the person using legal aid services to pay the costs of such ser- vices, s/he will have to pay for his/her defence and that of the opposing side if his/her financial situation improves over the course of the following three years. If the sentence does not say anything related to costs and the beneficiary of the legal aid services has won the case, s/he will have to pay the costs of his/her defence if they don’t exceed a third of what s/he has gained from it. Legal aid in the annual justice budget $3.16 Legal aid budget per capita in 2013 Legal aid is a separate component in the annual justice budget. Beyond the cost of core legal assistance services, the State also covers the cost of additional ser- vices, such as the intervention of experts and witnesses, the performance of no- tarial acts, etc. In both criminal and civil cases, legal aid providers receive a fixed fee for each Payments to legal case. The remuneration is credited to the lawyer after the Commission on Free aid providers Legal Assistance recognizes the provision of legal assistance to the applicant. The lawyer must provide the documentation that proves his/her performance before the bar association. 495

496 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is to persons arrested and detained on criminal available charges, persons charged with a criminal offence, persons imprisoned on crim- inal charges, victims of crime (gender-based crime and terrorism victims), vic- tims of human trafficking, minors, persons with mental disability when they are victim of abuse, persons who as a result of an accident have permanent sequel- ae that prevent them from working and therefore need assistance to carry out the most essential activities of daily life, as well as legal entities (associations of public interest and foundations who are registered in the appropriate register). The State is obliged to provide legal aid to persons who meet a financial threshold. At what stage of a criminal case? 50-75% Under the law, qualified legal assistance may be requested from the moment Proportion of criminal court cases a law enforcement representative restricts the suspects/defendant’s freedom, or from the moment an arrest is made in the police station or at the court. It is prohibited by law for the police to interview a person in the absence of a lawyer, unless the person is interviewed as a witness. This being said, a person can waive this right and agree to be interviewed without a lawyer. The courts are nonetheless strict about excluding evidence or statements provided in the absence of a legal aid provider. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that there is no significant difference in the quality of services provided by legal aid lawyers and by private lawyers. Furthermore, experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘the judge’s objective analysis of evidence and testimony’, and ‘the strength of the 82% evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. People who believe that the police always or often respects the basic rights of suspects WJP Rule of Law Index 2015 496

497 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold. For what actions is a party eligible for legal aid? National experts are of the view that there is public demand for public interest litigation and class action cases to address discrimination, labour rights, con- sumer rights, environmental protection and health. In accordance with art. 2 of the Law on Legal Aid No. 1/1996, public interest groups have the right to legal assistance if it is in the interest of their members. Estimated demand for legal aid How serious are the following problems in influencing people’s decisions services in civil cases on whether or not to go to civil courts to resolve a dispute, in the city where you live? According to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees 50% Lack of legal aid Location of Courthouses From respondents Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness 50% of remedies 3 3 497 From complainants Not very serious Very serious

498 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group Female victims of violence (including victims of sexual and gender-based vio- Women’s access lence) receive legal aid and court support services in all legal proceedings. to legal aid services According to national experts, women sometimes do not know where to find legal assistance and may not always be aware that legal aid services are available at little or no cost. Experts add that women may also find it difficult to confide in a legal aid provider and share intimate information related to the case. The justice system has specialized courts, judges, prosecutors and lawyers for Access to legal aid child victims, child witnesses, and suspected or accused children. When repre- for children senting children, legal aid providers rarely reach out to childcare professionals for support to assist the child throughout the proceedings. In criminal proceedings involving suspected or accused children, diversion away from judicial proceedings is occasionally used. According to independent national experts, there is no noticeable difference re- garding the use of alternatives to pre-trial detention and imprisonment in cases <10% where children are represented by legal aid providers (including those special- ized in children’s rights) and in cases where children are represented by private In less than 10% of cases when lawyers. children are suspected or charged with a criminal offence, the case is diverted from the formal justice system without trial (e.g. through mediation, a warning, or an apology) Mediation is not included under free legal assistance services. Legal aid and informal justice systems 498

499 Global Study on Legal Aid – Country Profiles Spain Western Europe and Others Group Quality safeguards When the legal aid provider is unprepared or unqualified or when no legal aid Accountability for provider arrives, the proceedings are postponed or a replacement legal aid pro- the quality of legal vider is asked to represent the party instead of the assigned provider. aid services A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to lacking expertise in the law or skills required by the specific case or due to incompatibility with the le- gal aid recipient. Formal responsibility for monitoring the quality of legal aid services rests with Monitoring the bar association. Data for monitoring the quality of legal aid services is col- and data collection lected through the review of complaints by legal aid recipients about a legal aid on the quality provider’s actions, and through satisfaction surveys filled by legal aid recipients. of legal aid services 499

500 United Kingdom Western Europe and Others Group United Kingdom 64.51 million Population Unitary government system 82% 18% N/A N/A Rural population Female literacy rate Male literacy rate Urban population $43,430 0.965 GNI per capita Gender Development Index 0.975 0.95 0.925 0.9 $1,045 $4,126 $12,736 MID/LOW MID/HIGH LOW MID/LOW LOW MID HIGH MID/HIGH HIGH -8.6% 0.829 0.907 Loss in HDI due to inequality Inequality-adjusted HDI HDI 0.8 0.7 0.55 0.7 0.8 0.55 LOW LOW MID HIGH HIGH MID VERY HIGH VERY HIGH

501 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Legal Aid at a Glance in the United Kingdom N/A 2012 More than 5 years ago When was the last assessment The latest reform of the legal aid Annual expenditure system was carried out in 2012 of legal aid needs conducted on legal aid per capita in 2013 People who received legal People’s trust in courts when seeking to assistance Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or A lot 19 pay a debt, during the past 3 years 41 Some Citizen survey, WJP Rule of Law Index 2015 26 A Little No Trust 14 34% 3 3 0% 100 % Sample size: 82 Priority areas for support Challenges in accessing legal aid Legislative drafting advice h People may not be aware that legal aid services are Development of action plans/policies available at little or no cost h Development of quality criteria for legal aid providers Lawyers are paid very little for legal aid work Establishing paralegal systems h Covering the cost of police, prosecutors and judges is generally prioritized over spending public funds on lawyers Institutional support h Training There is little support among the population for spending funds to defend accused criminals 501

502 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Legal framework The right to legal aid was first recognized in 1949. Right to legal aid The most recent reform of the legal aid system took place in 2012, when the The right to legal aid is guaranteed in: Parliament adopted the Legal Aid, Sentencing and Punishment of Offenders 2 Separate law on legal aid Act. This Act assigned the responsibility for administering civil and criminal 2 Law on police legal aid schemes to the Lord Chancellor. 2 Law on pre-trial detention 2 Criminal procedure law State-funded legal aid is available at national level only. 2 Implementing regulations for the law on legal aid For both civil and criminal cases, legal aid is provided in the form of legal advice, Services included legal representation and legal assistance (before tribunals). Additionally, in crim- as part of legal aid inal cases, legal aid lawyers provide legal information to their clients. Legal aid is provided upon request from the person who wants legal aid. The de- Process for obtaining termination is automatic if the case or legal aid recipient qualifies for legal aid legal aid services. In civil cases, to prove eligibility to receive legal aid, a person must prove her/his status as a recipient of welfare or state subsidies, demonstrate family hardship (e.g. multiple children, single parent, family member disability, etc.), provide ev- idence of low income or membership of a protected group (such as migrants, children, ethnic or religious minority, etc.) It may also be determined by compe- tent authorities that the interests of justice require provision of legal aid, or they may require proof that the legal aid applicant’s claim has merit. In criminal cases, no proof of eligibility is necessary for the provision of legal aid. A public information campaign to raise awareness about the right to legal aid Awareness of the right and how to access legal aid services was conducted by the State in the past to legal aid 3 years, and provided specific contact details of relevant offices to go for legal assistance. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about legal aid services. 502

503 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Delivery model The chief responsibility for the management and administration of legal aid rests Legal aid authority with the Ministry of Justice. In both criminal and civil cases, legal aid services are organised through the Organisation legal aid board and bar associations. Additionally, in criminal cases, they are of legal aid services organised through public defender institutions which work in parallel to State-funded private practitioners. State agencies contact the legal aid board which maintains a duty roster. There Mechanism for are also legal aid providers on duty in courts and police precincts. Usually, it assigning legal aid takes about an hour for a legal aid provider to appear after notice is given that providers legal aid is needed in a criminal case. Clients are allowed to choose their own provider. Legal aid services are available in rural areas, but the quality of legal aid services Accessing legal aid in tends to be better in urban areas. urban vs. rural areas 503

504 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Service providers Lawyers 1/443 N/A and other providers Full-time Licensed practicing /people lawyers legal aid lawyers /people University-based Paralegals law clinics Can provide some legal aid services under the supervision of a qualified lawyer as allowed by professional rules, in criminal, civil and administrative cases Legal aid providers must have a contractual relationship with the agency that Qualifications required oversees administration of legal aid. Public defender institutions organise training sessions for all providers of legal aid, including both staff and private lawyers / paralegals. Neither legal aid pro- viders nor paralegals are required to engage in continuing education or skills training. 504

505 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Finances There exists a sliding scale of payment, based on the financial status of a legal Costs to recipients aid recipient. Legal aid advice is free at the police station and at the Court of Appeal, but it is means-tested at Magistrates’ Court and Crown Court, where le- gal aid recipients may have to pay a contribution towards costs. Civil legal aid is subject to means and merit tests, and can be subject to a finan- cial contribution by the legal aid recipient. Legal aid in the annual justice budget $0.01 Legal aid budget per capita in 2012-13 Legal aid is a separate component in the annual justice budget. The national budget for legal aid is determined by the Ministry of Justice. The bar association and the legal aid board also participate in budgetary decisions. Specialized legal aid services for disadvantaged populations are funded by the State with substantial contribution from private actors. The State also covers the cost of additional services such as independent investigation or expertise, and psychological or social work support. In both criminal and civil cases, legal aid providers generally receive a fixed fee Payments to legal for each case. Sometimes, they receive a fixed fee for each action they take on a aid providers case. They can also be paid on an hourly basis for actions that the State has iden- tified as a basis of payment. In criminal cases, providers also work full-time in institutions funded by the State (e.g. public defender’s office). 505

506 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, legal aid is available to persons arrested and detained on crimi- nal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. to provide legal aid to persons who meet a financial The State is obliged threshold, provided that a case satisfies a merit test. At the Magistrates' Court, the means test operates as an in/out scheme and is based on income only. If an 50- individual is found to be financially ineligible for criminal legal aid, a hardship review mechanism is in place to serve as a safety net for individuals who main- tain that they are unable to pay privately for their defence costs. 75% Proportion of criminal court cases At what stage of a criminal case? (2013) Under the law, legal aid should be provided from the moment a law enforce- ment representative restricts the suspects/defendant’s freedom — including during an identification procedure, during questioning of a potential suspect/ defendant, and during a search of the suspect’s/defendant’s residence. At a min- imum, legal aid should be provided from the moment charges are officially filed. It is also provided during trial, for any appeal or cassation, and for representation 11% of prisoners in cases involving serious disciplinary charges. In 2013, 11% of criminal cases filed in Crown Courts were acquitted It is prohibited for the police to interview a person in the absence of a lawyer. To what extent are legal aid services in criminal cases seen as effective? Comparing the services of legal aid providers to services of private lawyers, 44% independent national experts estimate that legal aid providers are less likely In 2013, 44% of criminal cases filed in than private lawyers to conduct investigation to establish doubt about the sus- Crown Courts were resolved pursuant pect’s/defendant’s guilt even if the suspect/defendant may be guilty. However, to a plea agreement, procedural legal aid providers are more likely to advocate for alternative resolution of the agreement or expedited trial case when the defendant is under 18 years of age. National experts identify ‘a well-prepared and/or highly skilled lawyer’, ‘a poorly prepared prosecutor’, ‘availability of an independent expert testimony’, and ‘the strength of the evidence’ to be amongst the most influential factors in reaching a dismissal of charges or acquittal in criminal cases. 506

507 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group 84% 29% 1.3 People who believe that the In 2013, State-funded legal In 2013, the number of criminal police always or often respects aid was provided in 29% of cases was 1.3 times higher criminal cases filed in Crown and the basic rights of suspects than the number of civil and Magistrates Courts administrative cases WJP Rule of Law Index 2015 How serious are the following problems in criminal courts in the city where you live? According to national experts, WJP Rule of Law Index 2015 Excessive pre-trial detention Delay of cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Very serious Not very serious Who is eligible? Legal aid in civil cases Legal aid in civil cases is available to persons who meet a financial threshold (i.e. US$4,163, which is the maximum monthly gross income threshold). Legal aid is also provided when it is required by the interests of justice or due to the case’s gravity or complexity, provided that it satisfies a merit test. Additionally, in civil cases, the matter must be within the scope of the legal aid scheme, as set out in Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. 507

508 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Estimated demand for legal aid services in civil cases 2 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available 10% Child custody issues Claims for State services or From respondents disputes with State agencies Legal aid services are also commonly sought for administrative matters. However, legal aid is not available for these issues. For what actions is a party eligible for legal aid? Further to the provision of primary legal aid, more specific legal aid can be 90% offered to assist with drafting and filing complaints and responses, gaining access to State agencies, protecting victims of violence, conducting negotia- From complainants tions between parties, and drafting motions. Legal aid can also be provided throughout mediation and trial, and for any appeal or cassation. Public interest litigation / class action cases: Independent national experts are of the view that there is public demand for public interest litigation and class action cases addressing labour rights, dis- crimination, consumer rights, health and environmental protection. However, staff lawyers of public defender institutions do not coordinate to uniformly challenge common violations of national and international due process rights and human rights. How serious are the following problems in influencing people’s decisions on whether or not to go to civil courts to resolve a dispute, in the city where you live? according to national experts, WJP Rule of Law Index 2015 Court fees Attorney fees 9% Lack of legal aid Location of Courthouses In 2013, 9% of civil and administrative cases were Duration of cases represented in court by Bias against State-funded legal aid marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious 508

509 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Female victims of violence (including victims of sexual and gender-based vi- Women’s access olence) receive legal aid services in some legal proceedings. They also receive to legal aid services court support services, such as interpretation and translation of documents. However, national experts note that women are not always aware that legal aid services are available at little or no cost and they sometimes do not understand how legal aid services can help them. The justice system has specialized courts and judges dealing with child victims, Access to legal aid child witnesses or suspected and accused children. Child suspects can also have for children support from ‘appropriate adults’ at police interview. When representing children, legal aid providers often reach out to parents, so- cial workers and other childcare professionals for support to assist the child throughout proceedings. In criminal cases, when children are represented by legal aid providers (espe- cially those specialized in children’s rights), national experts estimate that diver- sion and alternatives to pre-trial detention and imprisonment are more often <10% achieved than in cases where children are represented by non-specialized legal In 2013, an alternative to aid lawyers or private lawyers. imprisonment was imposed in less than 10% of cases where a child was found culpable Informal justice mechanisms allow a lawyer to provide assistance in formal Legal aid and informal mediation/alternative dispute resolution processes, and there are mechanisms justice systems that allow cases to be referred between the formal and informal justice systems. According to national experts, people prefer to resolve disputes through infor- mal justice proceedings because they are less intimidating. Informal justice pro- ceedings are mainly used to resolve marital or family issues, as well as land and property disputes. To qualify for formal mediation/alternative dispute resolution processes, legal aid providers need authorization by an appropriate body. 509

510 Global Study on Legal Aid – Country Profiles United Kingdom Western Europe and Others Group Quality safeguards In criminal cases, legal aid institutions aim to ensure that the same provider rep- Accountability for resents the accused/suspect at all stages of the case. the quality of legal aid services Since there is no means of assessing a lawyer’s qualification or prepared- ness, there is no remedy if a legal aid provider turns out to be unprepared or unqualified. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient if s/he has too many cases, lacks ex- pertise in the law or skills required by the specific case, or if s/he has a conflict of interest with the legal aid recipient. The quality of legal aid services is monitored by the legal aid board, by a peer re- Monitoring view team (established by the board or the bar association), and by regulatory and data collection bodies (the Solicitors Regulation Authority and the Bar Standards Board). on the quality of legal aid services Data is collected on occurrences of breach of contract. There are still data gaps across the system. For instance, no data is available on case resolution prior to a case’s transfer to court. 510

511 United States of America Western Europe and Others Group United States of America 318.9 million Population Federal government system 81% 19% N/A N/A Rural population Female literacy rate Male literacy rate Urban population $55,200 0.995 GNI per capita Gender Development Index 0.975 0.95 0.925 0.9 $1,045 $4,126 $12,736 MID/LOW MID/HIGH LOW MID/LOW MID/HIGH MID LOW HIGH HIGH -17% 0.760 0.915 Inequality-adjusted HDI HDI Loss in HDI due to inequality 0.8 0.7 0.55 0.7 0.8 0.55 LOW LOW VERY HIGH MID HIGH MID HIGH VERY HIGH

512 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group Legal Aid at a Glance in the United States of America N/A In the past 5 years 2016 The latest reform of the criminal Annual expenditure When was the last assessment legal aid system was carried out on legal aid per capita in 2013 of civil legal aid needs conducted. in 2016 Individual federally-funded civil legal aid programs must conduct a needs assessment annually, as per federal regulations People who received legal People’s trust in courts assistance when seeking to Citizen survey, WJP Rule of Law Index 2015 resolve a conflict with someone who refused to fulfill a contract or 19 A lot pay a debt, during the past 3 years 45 Some Citizen survey, WJP Rule of Law Index 2015 A Little 25 11 No Trust 41% 3 3 0% 100 % Sample size: 116 Challenges in accessing legal aid Priority areas for support Lawyers are paid very little for legal aid work Legislative drafting advice h   People may not be aware that legal aid services are available at h Development of action plans/policies little or no cost, or may not know where to find legal assistance Development of quality criteria for legal aid providers Establishing paralegal systems  People (including individuals who qualify for legal aid) often do h Institutional support not recognize a civil justice problem as having a legal solution Training h Little support among the population for spending public funds to defend accused criminals People may prefer to resolve issues outside of the formal h justice system, where legal professionals do not typically participate 512

513 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group Legal framework The right to criminal legal aid was first widely recognized by law in 1963, with Right to legal aid , a landmark case in the U.S. Supreme Court history. In it, Gideon v. Wainwright the Supreme Court ruled that U.S. states (and not only the federal government) The right to legal aid is guaranteed in: were required under the Fourteenth Amendment to the U.S. Constitution to Constitution – only in criminal 2 provide counsel in felony criminal cases to represent defendants who are un- matters Criminal procedure law 2 able to pay their own attorneys. Further substantial reforms of the legal aid system took place in 1967 and 1972, and the provision of criminal legal aid across the country continues to be refined until this day through Supreme Court jurisprudence. State-funded criminal legal aid is available at federal, state and/or municipal level. There is no general right to civil legal aid in the United States, although many state jurisdictions have created a right in particular settings, such as in child welfare proceedings. Legal aid is mainly provided in the form of legal information, legal assistance, Services included legal advice and legal representation (before tribunals). Legal aid providers also as part of legal aid provide general assistance in navigating the justice system, and in executing legal documents. Specialized civil legal aid services are provided by the State (and civil society or- ganisations) for specific population groups, including children, women, persons with disabilities, LGBT, ethnic or religious minorities, indigenous populations, the elderly, migrants, refugees, asylum seekers, stateless persons and internally displaced persons. Legal aid is provided upon request from the person who wants legal aid, Process for obtaining and/or upon request from the prosecutor, the police, the bar association or the legal aid legal aid provider. The court presiding over a case must also assess eligibility to legal aid during the first appearance of the parties. The determination is auto- matic if the case or legal aid recipient qualifies for aid service as specified in the law. In criminal cases, a person must prove eligibility by demonstrating that s/he meets financial or vulnerability criteria. In civil cases, should legal aid be avail- able, a person must prove eligibility by providing evidence of low income, if em- ployed. In both cases, eligibility criteria may also depend on the jurisdiction. 513

514 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group The government has carried out public information campaigns to raise aware- Awareness of the right ness about the right to legal aid and how to access legal aid services (notably to legal aid through the U.S. Department of Justice’s Office for Access to Justice), and de- tailed information was provided on how to contact relevant service providers. Independent national experts estimate that the general population is ‘some- what knowledgeable’ about the right to legal aid services, but ‘not at all knowl- edgeable’ about how to access legal aid services, and where to access them. Delivery model There is no central administration at the federal-level responsible for the man- Legal aid authority agement of criminal and civil legal aid services. Each jurisdiction manages its own legal aid system. For example, criminal legal aid is organized through the Administrative Office of the United States’ Defender Services Office. The largest funder for civil legal in the United States is the Legal Services Corporation (LSC), which distributes more than 90 percent of its total federal appropriation to 134 independent nonprofit legal aid programs with more than 800 offices serving every county and territory in the country. LSC Is headed by a bipartisan board of directors whose 11 members are appointed by the President and confirmed by the Senate. LSC-funded programs help people who live in households with an- nual incomes at or below 125% of the federal poverty guidelines. One notable development in the United States is the launch of the White House Legal Aid Interagency Roundtable created in 2012 and made permanent by Presidential Memorandum in 2015 on the eve of the United Nations Sustainable Development Summit. The Roundtable brings together 21 federal agencies to support the United States’ Goal 16.3 activity – namely to raise federal agencies’ awareness of how civil legal aid can help advance a wide range of federal ob- jectives including improved access to health and housing, education and em- ployment, family stability and public safety. The Roundtable inspires new collab- orations to serve the poor and middle class within the United States and better engage civil legal aid providers as federal grantees, sub-grantees, and partners. The Roundtable does not serve as a legal aid authority, but does function as the primary federal-level activity related to legal aid. 514

515 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group In criminal cases, legal aid services are provided through public defender insti- Organisation tutions, and panel appointments (ex officio and contract lawyers), and may be of legal aid services assigned directly by a court or other justice authority. In civil cases, legal aid is provided through the same institutions, but also through civil society organi- sations and schemes. pro bono Public defender institutions work in parallel to government-funded non-gov- ernmental legal service institutions and private law firms who take assign- ments from the legal aid administration or the bar association. While there is no guaranteed right to civil legal aid, civil legal aid is provided free of charge by non-profit legal aid organizations, pro bono volunteers (at- torneys, law students and paralegals), law schools, court-based services such as self-help centres, and online technologies such as document assembly and le- gal information websites. There are criminal legal aid providers on duty in courts and police precincts. Mechanism for Alternatively, the courts and the police have a roster of duty legal aid providers assigning legal aid for a given day, and call them in the given order. The legal aid administration providers also maintains a duty roster and is contacted by government agencies when they require a legal aid lawyer. Government-funded legal aid services are provided in rural areas, although the Accessing legal aid in quality of legal aid services tends to be higher in urban areas, due to lack of re- urban vs. rural areas sources in rural settings. 515

516 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group Service providers Lawyers 1/249 N/A and other providers Licensed practicing criminal and civil Full-time /people lawyers legal aid lawyers /people University-based Paralegals law clinics Students can provide primary legal aid, conduct mediation, represent people in civil and administrative cases, and assist with the preparation of legal documents, if supervised by a faculty member or practicing lawyer Government-funded legal aid providers must have a law degree and show Qualifications required proof of passing a professional examination. Beyond this, each jurisdiction, via the local bar association, sets its own qualification and training requirements. Military lawyers also need to be admitted to practice before the military courts. Qualifications for paralegals depend on the type of case and the jurisdiction. While legal aid lawyers are required to undergo periodic skills training/testing, the government does not allocate funds to this end. Specialized training is not mandatory to qualify for work with specific disadvantaged population groups. 516

517 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group California, USA Paralegals Are community paralegals recognized by law? Grassroots Legal Advocates, Namati 2016 Yes, paralegals are recognized under the California Business and Professions Code §§ 6450-6456. Under California law, a paralegal is defined as a non-law- yer who performs substantive legal work under the supervision of an attorney, meeting defined educational requirements, and participating in mandatory Continuing Legal Education as required by law. However, under § 6456 an indi- vidual employed by the state as a paralegal, legal assistant, legal analyst, or simi- lar title is exempt from these requirements. Does any public revenue fund paralegals? No, public revenue does not fund paralegals. Can paralegals engage in litigation (with or without the help of lawyers)? Yes, paralegals can engage in many parts of the litigation process (under the supervision of an attorney) including, but not limited to: case planning, devel- opment, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make independent decisions and recommendations to the supervising attorney. All of these tasks are to be performed under the direction of a supervising attorney. A paralegal cannot represent a client in court. Are there boards that monitor community paralegals? No, there is no governing body for the paralegal profession in California. However, the bill is enforced by the courts and consumers can bring a cause of action against an individual who violated this law. The American Bar Association (ABA) Standing Committee on Legal Assistants has also adopted certain crite- ria that must be met for a paralegal program to meet ABA approval. However, ABA approval is voluntary. Washington, USA Are community paralegals recognized by law? Yes, paralegals are recognized in Washington, however, no formal certification, registration, or licensing process are in place. Does any public revenue fund paralegals? Yes. The Washington State Supreme Court established the Access to Justice (ATJ) Board, which promotes and facilitates equal access to justice in Washington for low and moderate income people through high-quality legal services. Some 517

518 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group pro bono of these services are provided or at a low cost by individual attorneys, while others are provided through publicly funded legal services agencies such as Columbia Legal Services and the Northwest Justice Project. Can paralegals engage in litigation (with or without the help of lawyers)? Yes, paralegals in certain courts in Washington can engage in litigation, and ex parte filings (if para- several counties in the state allow paralegals to present legals are registered with the county court). Beyond this, paralegals cannot appear in court without the assistance and supervision of a lawyer. Are there boards that monitor community paralegals? No, there is no independent governing body to regulate paralegals (since there is no specific legal requirement for paralegals to be registered, certified, or licensed), but the Washington State Paralegal Association supports and pro- motes the paralegal profession. New York, USA Are community paralegals recognized by law? New York has the one of the largest populations of paralegals in the country, yet paralegals are not officially recognized by law and there is no mandatory train- ing to be a paralegal. The Court Navigator program launched by the Access to Justice Committee of the New York State Unified Court System aims to “find ways for non-lawyers to be of assistance ... in the courthouse.” Does any public revenue fund paralegals? No. Any non-lawyer justice initiative must be pro bono . Can paralegals engage in litigation (with or without the help of lawyers)? Yes, paralegals can engage in many parts of the litigation process under the supervision of an attorney. Under the Court Navigator Program, specially trained and supervised non-lawyers can provide general information, written materials, and one-on-one assistance to eligible unrepresented litigants. Court Navigators also provide moral support to litigants, help them access and complete court forms, assist them with paperwork, accessing interpreters, as well as explain to them what to expect in the courtroom. Court Navigators are permitted to accompany unrepresented litigants into the courtroom in certain courts. Court Navigators cannot address the court on their own, but may respond to factual questions asked by the judge. Are there boards that monitor community paralegals? New York has several professional associations for paralegals that require 518

519 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group obtaining certain qualifications before gaining membership, including the Empire State Alliance of Paralegal Associations. The Court Navigator program also provides oversight for paralegals. Finances Legal aid services are free of charge for those meeting eligibility criteria. In crimi- Costs to recipients nal cases, all approved costs are covered. In certain situations, and depending on the jurisdiction, the party using legal aid may need to pay a percentage of the cost, as specified by a sliding scale of payment, based on financial status. Primary legal aid services are available free of charge at the office of the public defender, or other government-funded institutional legal aid providers, as well as at legal advice centres in city and/or town administrative offices. Free legal advice may also be provided by the bar association, which may manage a tele- phone hotline that individuals can call to receive assistance. Some civil society organisations provide legal advice to people who come to their offices. Lastly, websites such as www.lawhelp.org provide information and guidance for civ- il litigants. There is no separate criminal legal aid budget in the annual federal justice bud- Legal aid in the annual get due to the non-centralized nature of the U.S justice system. There is an an- justice budget nual federal appropriation to the Administrative Office of the United States' Defender Services Office, which oversees the funding of federal public defender offices across the United States. At the state and tribal-levels, each state or tribe determines its own budget for criminal legal aid, in consultation with the crimi- nal legal aid administration at the state level. Government funding is generally provided to cover the cost of specialized crim- inal legal aid services, and to cover the cost of additional services for some inde- pendent investigators and for independent forensic experts. The largest funder of civil legal aid for low-income Americans in the United States is the Legal Services Corporation, which was created in 1974. In fiscal year 2016, LSC’s federal appropriation was $385 million. Each state decides on its own payment system. Legal aid lawyers and parale- Payments to legal gals are either full-time salaried employees in institutions funded by the State, aid providers or they work in private law firms that receive funds from the State (e.g. for a set number of cases), in which case they are paid a fixed fee for each case or for any action they take on a case. 519

520 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group Provision of legal aid Who is eligible? Legal aid in criminal cases Under the law, criminal legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, and persons impris- oned on criminal charges. Victims of crime and witnesses are also eligible, but in . such cases, legal aid is not considered a right per se to provide criminal legal aid to persons who meet a obliged The government is financial threshold, to children, persons with physical or intellectual/mental dis- abilities, internally displaced persons, refugees, persons whose mother tongue is not the language of the official proceedings, and persons who face a poten- tial prison sentence or death penalty. Additionally, the government is obliged to provide legal aid when the law notes that the interests of justice require it, and authorised agencies have the discretion to assign legal aid depending on the case’s gravity and complexity. 20% At what stage of a criminal case? Proportion of criminal court cases Under the law, legal aid should be provided from the moment charges are offi- (2013) cially filed, as well as during trial and for a first appeal. It is not prohibited for the police to interview a person in the absence of a law- yer. However, if someone requests counsel, all questioning must stop. It is very common for pre-trial detention to be used even when suspects have access to legal aid services. To what extent are legal aid services in criminal cases seen as effective? Independent national experts estimate that legal aid lawyers are more likely than private lawyers to perform actions such as ‘presenting arguments in favour of a suspect’s/defendant’s release pre-trial’, ‘conducting investigation to estab- lish doubt about the suspect’s/defendant’s guilt even if the defendant may be guilty’, and ‘challenging the credibility of witnesses’. 75% People who believe that the police When asked about the most influential factors in reaching a dismissal of charges always or often respects the basic or acquittal in criminal cases, national experts refer to factors such as ‘a well-pre- rights of suspects pared and/or highly skilled lawyer’, ‘hiring a private lawyer who received pay WJP Rule of Law Index 2015 from the suspect/defendant and not from state legal aid funds’, ‘the strength of the evidence’, and ‘jury pool selection for trials’. 520

521 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group How serious are the following problems in criminal courts in the city where you live? 1.08 According to national experts, WJP Rule of Law Index 2015 In 2012, the number of criminal cases filed in state courts was Excessive pre-trial detention 1.08 times the number of civil and Delay of cases administrative cases Poor judicial decisions Inadequate resources Inadequate criminal defence Corruption Judicial independence Bias against marginalized people Inadequate ADRs 3 3 Not very serious Very serious Who is eligible? Legal aid in civil cases People are eligible for civil legal aid if they are children, persons with physical or in- tellectual/mental disabilities, internally displaced persons, refugees, and persons whose mother tongue is different from the language of proceedings. Civil legal aid may also be available according to the case’s gravity, complexity or case type, as identified by the law, and when the law notes that the interests of justice require it. Legal aid may also be available based on someone's status as a victim of a crime. 5 types of civil cases for which legal aid services are most commonly sought and for which State-funded legal aid is available Marital issues Claims for state services or Property issues disputes with state agencies Contractual disputes Labor disputes 521

522 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group Estimated demand for legal aid Public interest litigation / class action cases: services in civil cases Government-funded legal aid is not provided for public interest litigation and class action cases. However, national experts estimate that demand for civil le- gal aid is particularly high for class action cases addressing discrimination, la- bor rights, consumer rights, environmental protection, health and reform of the criminal system. Staff lawyers sometimes coordinate to uniformly challenge common violations of national and international due process rights and hu- man rights, at both federal and state levels. 80% How serious are the following problems in influencing people’s decisions From respondents on whether or not to go to civil courts to resolve a dispute, in the city where you live? According to national experts, WJP Rule of Law Index 2015 Court fees 20% Attorney fees Lack of legal aid From complainants Location of Courthouses Duration of cases Bias against marginalized people Cumbersome procedures Corruption Lack of awareness of remedies 3 3 Very serious Not very serious There are no specialized legal aid services for women. However, some female vic- Women’s access tims of violence (including victims of sexual and gender-based violence) receive to legal aid services legal aid services (as well as court support services, such as interpretation and translation of documents) in legal proceedings. The justice system has specialized prosecutors, courts, judges, police units and Access to legal aid lawyers/paralegals to handle cases involving child victims, child witnesses, and for children suspected or accused children. In criminal cases involving suspected or accused children, diversion away from judicial proceedings is may be used. When representing children, legal aid providers routinely reach out to parents, social workers or other childcare professionals to assist the child throughout proceedings. 522

523 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group According to independent national experts, in criminal cases, diversion away from judicial proceedings, alternatives to pre-trial detention and alternatives to imprisonment are more often achieved when children are represented by legal aid providers than in cases where they are represented by private lawyers. Experts add that this is achieved at an even higher rate when children are rep- resented by legal aid providers specialized in children’s rights. Informal justice mechanisms allow a lawyer or paralegal to provide assis- Legal aid and informal tance for formal mediation/alternative dispute resolution processes, and there justice systems are mechanisms that allow cases to be referred between formal and informal justice systems. Lawyers and paralegals are also allowed to represent parties or provide advice in customary mediation/adjudication processes, especially in indigenous com- munities that employ traditional justice practices. To provide assistance in informal justice processes, legal aid providers must have a minimum set of qualifications, as specified by each jurisdiction. Quality safeguards Legal aid providers are obliged to adhere to ethical rules and specific quali- Accountability for ty and performance standards established by bar associations at both feder- the quality of legal al and state levels. aid services If a party is denied access to legal aid, there is a right to appeal that decision in criminal cases. If a person has a right to legal aid, but no legal aid provider is available, the proceedings must cease until a legal aid provider arrives (although there are limitations in place, such as when the case reaches a ‘critical stage’ and proceedings cannot be interrupted.) If a person receives legal aid services from a legal aid provider who is unprepared or unqualified, the proceedings are deemed invalid or postponed, or a replacement legal aid provider is asked to represent the party. In criminal cases, legal aid institutions aim to ensure that the same provider represents the accused/suspect at all stages of the case. A legal aid provider can refuse to take a case or ask to be removed from the duty to represent a particular legal aid recipient due to a conflict of interest or incom- patibility with the legal aid recipient. 523

524 Global Study on Legal Aid – Country Profiles United States of America Western Europe and Others Group Several bodies are responsible for monitoring the quality of legal aid services, Monitoring at all levels: legal aid administrations, bar associations, the judiciary, the office and data collection of the prosecution, the statistics bureau, peer review teams established by the on the quality legal aid administration, as well as research institutions commissioned by the of legal aid services government. To monitor the quality of legal aid services, data is collected through the review of complaints lodged by legal aid recipients, through assessments conducted by justice actors, and through satisfaction surveys filled by legal aid recipients. Services provided in court are also monitored, and legal aid providers report on their actions to the monitoring institution of their jurisdiction. The justice system continues to face considerable data challenges (e.g. data on legal aid provided to children is not recorded separately), partly due to the federal nature of the U.S. criminal justice system, which makes it difficult to aggregate data with accuracy at the federal level. 524

525 Global Study on Legal Aid – Country Profiles Table of Legal Aid Legislation: The Right to Legal Aid Around the World This Table of Legal Aid Legislation is an overview of how the right to legal aid is provided for in the constitutions and legal frameworks of 125 United Nations Member States. The information was compiled based on information provided by the Member States and supplemented by additional research, where available. Constitutions around the world vary in the manner in which they guarantee The Table also provides the name of legislation dedicated to legal aid, where the right to legal aid. While some countries guarantee the right to legal aid available. If a State does not have a legislation dedicated to legal aid, provi- at the State’s expense directly in their constitution, other countries do so via sions from other legislation or statutes on the right to legal aid are indicated. development of case law or legislation. In some other countries, the constitu- For countries with a federal system, the law that applies at the federal level is tion provides the broader right to a fair trial, such as by the right to defence noted, where available, with the understanding that there may be addition- or the right to legal assistance of one’s own choosing, without specifying al legislation at other levels of government. For those countries with a feder- whether the right includes access to legal aid. This Table identifies the specif- al system that do not have a nationwide legal aid legislation, the law of each ic references in the constitution related to the right to legal aid at State’s ex- state, province or territory is highlighted, where available. pense, where available, and for those States that provide a broader right to a fair trial, the text of the relevant article is also included. 525

526 Country Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legislation Legal Aid Year of Adoption Article No. Text of the Relevant Article A Afghanistan Upon arrest, or to prove truth, every individual can appoint a defence attorney. h A r t . 3 1 2007 Criminal legal aid is available for indigent Legal Aid Regulation people (person whose income is not Immediately upon arrest, the accused shall have the right to be informed of sufficient to cover his/her livelihood). the nature of the accusation, and appear before the court within the time limit Civil legal aid is available for indigent h specified by law. In criminal cases, the state shall appoint a defence attorney for the women and children. indigent. Confidentiality of conversations, correspondence, and communications Provision of legal aid is regulated by the between the accused and their attorney shall be secure from any kind of violation. h The duties and powers of defence attorneys shall be regulated by law. Ministry of Justice in cooperation with legal aid independent board. h In a criminal proceeding, everyone has the right: 2008 Albania Art. 31(d) Provision of State-funded legal aid is the Law No. 10039 on Legal Aid [...] responsibility of the Ministry of Justice, National Bar Association and the State d. to be defended by himself or with the assistance of a legal defender chosen by Commission for Legal Aid (SCLA). him; to communicate freely and privately with him, as well as to be provided free For civil and administrative cases, the defence when he does not have sufficient means[...] h person must prove that he/she is included in social protection programs or satisfies the requirements to be included in such programs. 2014 2. All persons shall have the right to counsel and the technical assistance of a Rules on the right to defence Art. 10(2), (3) Andorra Legal aid in criminal cases is provided at the h first contact with the police. competent lawyer, [...] and technical legal assistance 3.In order to guarantee the principle of equality, the law shall regulate the cases in (Reglament regulador del dret a la defensa i l’assistència tècnica which justice shall be free of cost. lletrades) Rules on the benefit of free 2000 justice in the criminal field (Reglament regulador del benefici de justícia gratuïta en l’àmbit penal) 526

527 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Angola Art. 67(3), (5) 3. The defendant shall have the right to choose a lawyer or counsel and to be h 1995 It can be granted before any Court in any Decree Law 15/95, on Legal Aid (Decreto Lei nº 15/95, de assisted by them throughout the legal proceedings, and the cases and phases in type of proceedings. Assistência Judiciária) Provision of legal aid is decided by the judge which legal assistance is obligatory shall be specified by law. h [...] responsible for the procedure. 5. Defendants or prisoners who are unable to appoint a lawyer for financial reasons must, under the terms of the law, be ensured adequate legal aid. 1 Article 120. The Public Ministry is an independent body with functional autonomy Organic Law on the Federal Art. 120 1998 Argentina The Federal Public Defender’s Office is the h (Ley Orgánica del institution in charge of providing legal and financial autarky, with the function of promoting the participation of justice Public Office for the defence of the legal character of the general interests of society, in Ministerio Público) aid and judicial defence of people’s rights (public defence services). coordination with the other authorities of the Republic. Armenia The Law of the Republic of Everyone shall have the right to receive legal aid. In cases prescribed by law, legal h A r t . 6 4 2004 Legal aid is provided by the Office of the Armenia on the Profession of aid shall be provided at the expense of State funds. With the aim of ensuring legal Public Defender, a subdivision within the Advocate, Arts. 6, 41- 42 Chamber of Advocates. aid, advocacy based on independence, self-government and equality of advocates shall be guaranteed. The rights, status and duties of the advocates are established by law. 2 N/A h In the Australia Capital Territory, the Australia Australia Capital Territory 1977 N/A Legal Aid Act 1977 Legal Aid Act establishes the Legal Aid Commission (ACT ), a body corporate whose function is to provide assistance in accordance with the Act. h The Act employs legal officers but also arranges for the services of private legal practitioners. Legal assistance and representation is provided in both civil and criminal matters. New South Wales 1979 In New South Wales, the Legal Aid h Legal Aid Commission Act Commission (Legal Aid NSW ) administers 1979 legal aid in New South Wales. It provides legal advice in specified civil, criminal and family matters using in-house lawyers and private practitioners. 527 2 In Australia, as a country with federal system, each territory has its own independent legal aid commissions which are responsible for administering legal aid.

528 Article(s) in the constitution related to the right to legal aid or the right to a fair trial Country Main Legal Aid Year of Comments Adoption Legislation Text of the Relevant Article Article No. Australia N/A 1990 In Northern Territory, Northern Territory h Northern Territory N/A Legal Aid Act 1990 Legal Aid Commission is the statutory body responsible for administering legal aid in the Northern Territory. Legal aid is offered using the services of in-house lawyers as well as private lawyers. It is available for criminal and civil matters. h In Queensland, Legal Aid Queensland is Queensland 1997 the statutory body with the responsibility Legal Aid Queensland Act 1997 for administering the legal aid system established by the Legal Aid Act in Queensland. Legal aid is provided to financially disadvantaged persons in both criminal and civil matters. South Australia 1977 In South Australia, Legal Services h Commission is a body corporate charged Legal Services Commission Act 1977 with the administration of legal aid under the Act. Legal aid is offered in criminal and civil matters using state attorneys and private practitioners. h 1990 Tasmania In Tasmania, State legal aid services are administered by the Legal Aid Commission. Legal Aid Commission Act The Commission provides legal aid in 1990 criminal matters, matters involving family violence, family matters and family law disputes that involve a child. Legal aid is not provided for civil matters. In Victoria, legal aid is offered in criminal h Victoria 1978 law, family law and some civil matters and Legal Aid Act 1978 is provided by both in-house lawyers and private practitioners. h In Western Australia, legal aid may be 1976 Western Australia provided by duty lawyers employed Legal Aid Commission Act by Legal Aid WA, as well as by private 1976 practitioners. 528

529 Comments Country Article(s) in the constitution related to the right to legal aid or the right to a fair trial Year of Main Legal Aid Adoption Legislation Article No. Text of the Relevant Article 3 1975 European Code of Criminal Procedure, § 3. Everyone charged with a criminal offence has the following minimum rights: [...] Austria (c) to defend himself in person or through legal assistance of his own choosing or, 61, 65-67 Convention (Strafprozeßordnung, if he has not sufficient means to pay for legal assistance, to be given it free when on Human §61, 65-67) Rights, Art. the interests of justice so require[...] 6(3)(c) A r t . 6 1 The Law of the Republic of 2001 I. Everyone has the right to receive qualified legal assistance. Azerbaijan Azerbaijan “On Legal Aid in II. In cases specified by law, legal help shall be rendered free at the expense of the State. Criminal Cases” III. Everyone from the moment of being detained, arrested, charged with a crime on the part of authorised State organs has the right to seek the help of the Defender. B Legal Aid Services Act, 2000 h National Board of Management is entrusted (1) No person who is arrested shall be detained in custody without being informed, Art. 33(1), (5) 2000 Bangladesh with general administration of the National as soon as may be, of the grounds for such arrest, nor shall he be denied the right Act No. VI of 2000 Legal Aid Services Organisation. to consult and be defended by a legal practitioner of his choice. According to Legal Aid Services Act, a (5) When any person is detained in pursuance of an order made under any law h District Committee, which considers legal providing for preventive detention, the authority making the order shall, as soon as aid applications and implements the legal may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation aid programs, is established in every district. against the order: Provided that the authority making any such order may refuse to disclose facts which such authority considers to be against the public interest to disclose. Barbados does not explicitly guarantee 1985 The Community Legal Services (2).Every person who is charged with a criminal offence – h Art. 18(2)(d), Barbados legal aid to a defendant in the Constitution. [...] (12) Act However, it has been held by the Privy (d) shall be permitted to defend himself before the court in person or by a legal representative of his own choice; Council in Hinds v AG that the right to [...] fair trial enshrined in Art. 18 means that in (12) Nothing contained in subsection (2)(d) shall be construed as entitling a person certain circumstances a defendant must to legal representation at public expense. be provided with free legal aid in order to guarantee this right. h The legal aid scheme is administered through the Community Legal Services Commission. Legal aid is generally provided for persons h with insufficient means in criminal cases, certain civil cases and in all cases involving minors. 529 3 Although Austrian Constitution does not contain an explicit provision on access to legal aid, the European Convention on Human Rights has a constitutional rank in Austria. This means that provisions of the European Convention on Human Rights are directly applicable and enforceable in Austria.

530 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Belarus A r t . 6 2 Everyone shall have the right to legal assistance to exercise and defend his rights Criminal Procedure Code of the 1999 Republic of Belarus, Art. 17 and liberties, including the right to make use, at any time, of the assistance of (Уголовно-процессуальный lawyers and one’s other representatives in court, other state bodies, bodies of local government, enterprises, establishments, organisations and public associations, and кодекс Республики Беларусь, Ст. 17) also in relations with officials and citizens. In the instances specified in law, legal assistance shall be rendered from public funds. Opposition to the rendering of legal assistance shall be prohibited in the Republic of Belarus. h The “Salduz Bill”, which was enacted Everyone has the right to lead a life in keeping with human dignity. 2011 An Act amending the Code Art. 23(2) Belgium 4 following the Salduz v. Turkey judgement To this end, the laws, federate laws and rules referred to in Article 134 guarantee of Criminal Procedure and of the European Court of Human Rights, the Law of 20 July 1990 on economic, social and cultural rights, taking into account corresponding obligations, gives every accused person the right to a 30 and determine the conditions for exercising them. preventive detention to confer minute consultation with a lawyer before rights, including the right to These rights include among others: their interrogation and for the lawyer to be consult a lawyer and to be [...] present during interrogation. assisted by him, to anyone 2. the right to social security, to health care and to social, medical and legal aid [...] arrested and anyone deprived from liberty (the “Salduz Bill”) (Loi modifiant le Code d’instruction criminelle et la loi du 20 juillet 1990 relative à la détention préventive afin de conférer des droits, dont celui de consulter un avocat et d’être assistée par lui, à toute personne auditionnée et à toute personne privée de liberté) 2011 An Act amending the Judicial Code concerning legal aid (Loi modifiant le Code judiciaire en ce qui concerne l’aide judiciaire) Law on Legal Aid 1998 (Loi relative à l’aide juridique) 530 Salduz v. Turkey, App. No. 36391/02, Judgment of 27 November 2008, ECHR 2008. 4

531 Country Main Legal Aid Year of Article(s) in the constitution related to the right to legal aid or the right to a fair trial Comments Legislation Adoption Article No. Text of the Relevant Article A r t . 1 7 N/A Benin N/A Any person accused of an unlawful act shall be presumed innocent until his culpability has been legally established in the course of a public lawsuit during which all guarantees necessary to his free defence (“libre defense”) shall have been assured to him. Article 115 2013 h Arts. 115 (II), Law on the Plurinational Service Bolivia Legislation of Bolivia establishes two different services, both under the Ministry II. The State guarantees the right to due process and defence, and to plural, prompt, 119 (II), 121 (II) (Plurinational State of ) of Public Defence of Justice: appropriate, free, and transparent justice without delays. No. 463, 19 December 2013 (i) One for offenders, which includes legal (Ley del Servicio Plurinacional de Article 119 II. Everyone has the inviolable right to a defence. The State shall provide a defence Defensa Pública, Ley Nº 463 de 19 technical assistance for those who cannot de diciembre de 2013) lawyer free of charge to persons accused or denounced in the event that they do afford it or who have not designated a not have the necessary economic resources. lawyer. Article 121 (ii) Another for victims, which includes 2013 Law on the Plurinational Service II. The victim in a criminal process shall be able to intervene in accordance with the legal aid for victims of crime with scarce of Victim Assistance, No. 464, 19 law, and shall have the right to be heard before each judicial decision. In the event resources. December 2013 that he or she does not have the necessary economic resources, he or she will be (Ley del Servicio Plurinacional de assisted free of charge by a lawyer appointed by the State. Asistencia a la Víctima, Ley Nº 464 de 19 de diciembre de 2013) 2. Every person who is charged with a criminal offence - [...] 2013 Legal Aid Act Botswana Legal aid is available in criminal and civil h Sec. 10(2) c. shall be given adequate time and facilities for the preparation of his or her (c)-(d) proceedings. defence; Legal Aid Botswana is the statutory entity h d. shall be permitted to defend himself or herself before the court in person or, at his responsible for administering legal aid or her own expense, by a legal representative of his or her own choice. services for persons who cannot afford a lawyer. Complementary Law No. 80, Brazil 1994 Art. 5 (LXXIV ) h In Brazil, there are Offices of Public The State shall provide full and free-of-charge legal assistance to all who prove of 12 January 1994 Defenders on both federal and state levels. insufficiency of funds[...] (Lei Complementar Nº 80, de 12 h No proof of eligibility is required in criminal de Janeiro de 1994) cases. 531

532 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Bulgaria h Arts. 30 (4), 56 Representation in Court shall cover Article 30 Legal Aid Act 2005 (4) Everyone shall be entitled to legal counsel from the moment of detention or the cases in which legal counselling or representation is required by law, and all from the moment of being charged. cases where the party in a criminal, civil or Article 56 administrative case does not possess the Everyone shall have the right to legal defence whenever his rights or legitimate necessary means to pay for an attorney, interests are violated or endangered. He shall have the right to be accompanied by wishes to have one and the interests of legal counsel when appearing before an agency of the State. justice require it. Legal aid is organised by the National Legal h Aid Bureau (NLAB), independent state body, and by bar councils. All Burkinabe and all persons living in Burkina Faso benefit from an equal protection 2009 A r t . 4 Burkina Faso Decree No. 2009-558/PRES/PM/ MJ/MEF/MATD of 22 July 2009 of the law. All have the right to have their case heard by an independent and concerning the organisation of impartial jurisdiction. Any accused is presumed innocent until his guilt has been legal aid of Burkina Faso, JO No. established. The right to a defence, including that of freely choosing one’s defender 33 of 13 August 2009 is guaranteed before all the jurisdictions. (Décret N°2009-558/PRES/PM/ MJ/MEF/MATD du 22 juillet 2009 portant organisation de l’assistance judiciaire de Burkina Faso, JO N° 33 du 13 aout 2009) Cabo Verde Regulatory Decree No. 10/2004 The system is managed by the Bar Association 3. Everyone has the right to defence and to legal information, to legal counsel and to Art. 22(3), (4) 2004 C (Decreto-Regulamentar Nº be accompanied by a lawyer before any authority under the law. (Orden dos Advogados de Cabo Verde) 4. Justice cannot be denied because of insufficient economic means or undue delay 10/2004) of the decision. A r t . 3 8 Every citizen shall enjoy the right to defence through judicial recourse. N/A N/A Cambodia 2009 [E]very accused person is presumed innocent until found guilty during a hearing Law No. 2009/004 of 14 The Constitution of Cameroon lists 25 h Cameroon Principle 11 of the Preamble principles in its Preamble, to which the conducted in strict compliance with the rights April 2009 concerning the of defence[...] organisation of legal aid State “shall guarantee all citizens of either sex the rights and freedoms set forth in the (Loi No. 2009/004 du 14 AVR 2009 portant organisation de Preamble[...]” l’assistance judiciare) 532

533 Country Year of Comments Main Legal Aid Article(s) in the constitution related to the right to legal aid or the right to a fair trial Adoption Legislation Text of the Relevant Article Article No. 5 Canada Everyone has the right on arrest or detention Alberta Constitution N/A In Alberta, Legal Aid Alberta is a publicly h 6 [...] Act, 1982 , N/A funded, independent organisation that b. to retain and instruct counsel without delay and to be informed of that right [...] Sec. 10(b) provides legal aid in criminal and civil matters as well as in immigration and extradition matters. British Columbia 2002 In British Colombia, the Legal Services h The Legal Services Society Act Society established under the Act provides legal aid services to persons who cannot afford a lawyer by using both staff lawyers and private lawyers. Manitoba 2015 h In Manitoba, Legal Aid Manitoba administers Legal Aid Manitoba Act legal aid in Manitoba. It offers legal aid in mainly criminal and family matters. It also conducts public interest litigation. Civil suits are not generally covered. New Brunswick 1971 h In New Brunswick, New Brunswick Legal Legal Aid Act Aid Services Commission was established in 2005 to oversee the delivery of legal aid services in criminal defence and family matters. Newfoundland and Labrador 1996 h In Newfoundland and Labrador, Legal Aid Act Newfoundland and Labrador Legal Aid Commission, a corporation established by the Act has overall responsibility for the administration of legal aid services. Legal aid is provided in criminal matters, family matters and certain civil matters. Northwest Territories 2012 In Northwest Territories, the Northwest h Legal Aid Act Territories Legal Aid Commission is responsible for the administration of legal aid. It provides legal aid in criminal, family and poverty law matters using staff attorneys and private counsel. Nova Scotia 1989 In Nunavut, the Legal Services Board of h Legal Aid Act Nunavut is responsible for providing legal services to financially eligible Nunavummiut in the areas of criminal, family and civil law. 533 5 Canadian Federal Government does not provide legal aid; this is the responsibility of the territorial and provincial governments. 6 Constitution Act, 1982 is a part of the Constitution of Canada.

534 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Nunavut In Nunavut, the Legal Services Board of 1988 h Canada Everyone has the right on arrest or detention Constitution [...] Legal Services Act, R.S.N.W.T. Act, 1982 , Sec. Nunavut is responsible for providing legal services to financially eligible Nunavummiut b. to retain and instruct counsel without delay and to be informed of that right [...] 10(b) 1988 in the areas of criminal, family and civil law. 1998 h In Ontario, Legal Aid Ontario is an Ontario independent publicly funded body Legal Aid Services Act responsible for administering Ontario’s legal aid programme. h In Saskatchewan, Saskatchewan Legal Aid Prince Edward Island N/A Commission provides legal aid in family, civil N/A and criminal law for persons who cannot afford legal services. In Québec, a body called the “Commission Québec 1972 h des services juridiques” established by the An Act Respecting Legal aid and the Provision of Certain Act administers legal aid in the territory. Legal aid is available in criminal matters, Other Legal Services family matters and certain civil matters. h Yukon In Yukon, Yukon Legal Service Society, which 2002 Legal Services Society Act is not a statutory body but is funded by the government, provides legal aid in Yukon. Legal aid is available in criminal matters where the penalty is incarceration or where a minor is involved, extradition matters and certain civil matters (family matters, matters under the Mental Health Act and all child protection proceedings). Chad Every defendant is presumed innocent until the establishment of their culpability N/A N/A A r t . 2 4 following a regular process offering the indispensable guarantees for their defence. 534

535 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article Art. 19(3) Law No. 19.718, establishing the 3. [...] All persons have the right to a juridical defence in the form that the law Chile 2011 Public Criminal Defender specifies and no authority or individual can impede, restrict or disturb the due intervention of an attorney, if it is required. Concerning the members of the Armed (Ley Nº. 19.718, crea la Defensoría Forces and [the forces] of Public Order and Security, this right will be governed, Penal Pública) concerning administrative and disciplinary [matters], by the pertinent norms of their respective statutes. Law No. 20.286, introducing 2008 The law shall provide the means to grant juridical counsel and defence to those organic and procedural who cannot secure them on their own. The law shall specify the cases and shall amendments to Law Nº 19.968, establish the form in which natural persons [who are] victims of crimes may be creating the Family Courts provided with gratuitous juridical counsel and defence, to the effect of exercising (Ley Nº 20.286, introduce the criminal [penal] action recognized by this Constitution and the laws. modificaciones orgánicas y Any person accused of a crime has the irrenounceable right to be assisted by a procedimentales a la Ley Nº suitable defending attorney by the State if one cannot be appointed in the modality 19.968, que crea los Tribunales established by the law. de Justicia) While the right to legal aid is not directly China 2003 h Legal Aid Regulations N/A N/A mentioned in the Constitution of China, Lawyers Law 1996 equal access to justice is implied in the Article 33 of the Constitution that “[a]ll citizens of the People’s Republic of China are equal before the law”. h The Criminal Procedure Code grants legal aid to suspects and defendants in criminal matters. Law 24 of 1992, establishing the 1992 Whoever is accused is entitled to defence and the assistance of counsel picked by Colombia A r t . 2 9 the accused or assigned automatically during the investigation and trial[...] organisation and operation of the Ombudsman’s Office (Ley 24 de 1992, por la cual se establece la organización y funcionamiento de la Defensoría del Pueblo) Law 941 of 2005, organising 2005 the National System of Public Defender (Ley 941 de 2005, por la cual se organiza el Sistema Nacional de Defensoría Pública) 535

536 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article A r t . 1 9 N/A The right to defence is organised and guaranteed. Congo N/A (Democratic All persons have the right to defend themselves or to be assisted by a defender of Republic of the) their choice, at all stages of the criminal procedure, and including the police inquiry and the investigation before trial. They may be assisted equally before the security services. A r t . 9 1992 Law No. 026-92 concerning the Congo [...] Any accused is presumed innocent until his culpability has been established organisation of the profession (Republic of ) following a procedure that guarantees him the rights of defence. [...] of the lawyer, Art. 1 (Loi No. 026-92 du 20 août 1992 portant organisation de la profession d’avocat, Art. 1) Law No. 022-92 concerning 1992 the organisation of judicial authority, Art. 2 (Loi No. 022-92 du 20 août 1992 portant organisation du pouvoir judiciaire, Art. 2) A r t . 3 9 Legal aid is provided by the Public h Law No. 7333, Organic Law on 1993 Costa Rica No one will be made to suffer a penalty except for [a] crime, [an] offence or [a] the Judicial Power, Art. 152 Defender’s Office to criminal and “non- fault sanctioned by [a] previous law, and by virtue of a firm sentence issued by [a] (Ley Nº 7333, Ley Orgánica del criminal agrarian” cases. competent authority, [with] prior opportunity granted to the indicted [person] to Poder Judicial, Art. 152) exercise their defence and through the necessary demonstration of culpability. [...] Arts. 20, 22 Legal aid is provided by the Public 1972 h Code of Civil, Commercial and Cote d’Ivoire Article 20 Defender’s Office to criminal and “non- Administrative Procedure Everyone has the right to a free and equal access to justice. criminal agrarian” cases. (Law No. 72-833 of 21 Article 22 December 1972 concerning [...] the Code of Civil, Commercial Any accused is presumed innocent until his culpability has been established and Administrative Procedure, following a procedure offering to him the guaranties indispensable to his defence. Arts. 27-30) (Le Code de procedure civile, commerciale et administrative (Loi No. 72-833 du 21 decembre 1972 portant Code de procedure civile, commerciale et administrative, Arts. 27-30) 536

537 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Croatia Free Legal Aid Act 2008 Arts. 27, 29 h Provided in all proceedings before courts, Art. 27. The Bar, as an autonomous and independent service, shall provide everyone administrative bodies and other legal with legal aid, in conformity with law. entities vested with public authority, if Art. 29. [...] In the case of suspicion or accusation for a penal offence, the suspected, they are adjudicating on the “beneficiary’s accused or prosecuted person shall have the right: [...] existential issues”. It can also be approved by – To defend himself in person or with the assistance of a defence counsel of his own the court “for reasons of fairness”. choice, and if he lacks resources to engage a counsel, to have a free counsel under the terms specified by law[...] Legal aid providers are attorneys, authorised h associations and institutions of higher education. h The implementation is monitored by a Legal Aid Commission (advisory body) and the “ministry responsible for justice affairs”. Cyprus Article 12(5).. Every person charged with an offence has the following minimum rights: [...] Arts. 12(5) 2002 Legal aid is granted in: h Free Legal Aid Law (c) to defend himself in person or through a lawyer of his own choosing or, if he has no (Νόμος που προνοεί για παροχή (1) Criminal proceedings. and 30(3) sufficient means to pay for legal assistance, to be given free legal assistance when the δωρεάν νομικής αρωγής) (2) Criminal and civil proceedings for interests of justice so require [...] specific violations of human rights. (3) Proceedings before the Family Court. Art. 30(3). Every person has the right [...] (d) to have a lawyer of his own choice and to have (4) Cross-border disputes. free legal assistance where the interests of justice so require and as provided by law. 7 Czech Republic Article 37 1996 Act No. 85/1996 Coll. of 13th Charter of [...] Fundamental March 1996 on the Legal Profession Rights and (2) In proceedings before courts, other State bodies, or public administrative Freedoms, authorities, everyone shall have the right to legal assistance from the very beginning Arts. 37(2), of such proceedings. [...] 1999 Act No. 349/1999 Coll. of 8th 40(3) Article 40 December 1999 on the Public [...] Defender of Rights (3) The accused has the right to be given the time and opportunity to prepare a defence and to be able to defend herself, either pro se or with the assistance of counsel. If she fails to choose counsel even though the law requires her to have one, she shall be appointed counsel by the court. The law shall set down the cases in which the accused is entitled to counsel free of charge. [...] D Denmark N/A 1916 N/A Administration of Justice Act (Bekendtgørelse af lov om rettens pleje) Dominican Republic The State shall be responsible for organizing programs and services of free legal assistance Administration of Justice Act Art. 177 There is a National Council of Public h 2004 in favour of people who lack economic resources to obtain judicial representation of their (Bekendtgørelse af lov om Defence, which establishes general policies interests, particularly for the protection of the right of victims, without prejudice to the rettens pleje) and rules of operation; and a National Office powers that correspond to the Public Ministry in the realm of the criminal process. of Public Defence that implements public defence policies according to the lines established by the Council. 537 7 The Charter of Fundamental Rights and Basic Freedoms forms part of the constitutional order of the Czech Republic by virtue of Article 3 of the Constitution of Czech Republic

538 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Organic Code on the Judicial The Office of the Attorney for the Defence of the People is an autonomous body Ecuador 2009 Art. 191 h There is specialized public defence for women, children and youth, victims of Function of the Judicial Branch, aimed at guaranteeing full and equal access to justice by (Código Orgánico de la Función violence, and indigenous people. persons who, because of their situation of defencelessness or economic, social, or cultural status, cannot hire legal defence services for the protection of their rights. Judicial) The Office of the Attorney for the Defence of the People shall provide technical, timely, efficient, effective and free-of-charge legal services to support and legally advise the rights of persons in all matters and institutions. A r t . 9 8 The right of defence either in person or by proxy is guaranteed. The independence N/A N/A Egypt of lawyers and the protection of their rights are ensured as a guarantee for the right of defence. For those who are financially incapable, the law guarantees the means to resort to justice and defend their rights. Decree No. 775, Organic Law Every person accused of an offence shall be presumed innocent while his guilt is A r t . 1 2 2008 El Salvador on the General Attorney of the not proven in conformity with the law and in public trial in which all the guarantees Republic necessary for his defence have been assured. The detained person shall be immediately and clearly informed of his rights and of (Decreto No. 775, Ley Orgánica the reasons for his detention, and cannot be compelled to make a declaration. The de la Procuraduría General de la República) detained is guaranteed the assistance of a defence lawyer (defensor) during the proceedings of the auxiliary organs of the administration of justice and in judicial proceedings, in the terms established by the law. Every person accused of an offence shall be presumed innocent while his guilt is 2008 Decree No. 775, Organic Law A r t . 1 2 El Salvador not proven in conformity with the law and in public trial in which all the guarantees on the General Attorney of the Republic necessary for his defence have been assured. (Decreto No. 775, Ley Orgánica The detained person shall be immediately and clearly informed of his rights and of the reasons for his detention, and cannot be compelled to make a declaration. The de la Procuraduría General de la República) detained is guaranteed the assistance of a defence lawyer (defensor) during the proceedings of the auxiliary organs of the administration of justice and in judicial proceedings, in the terms established by the law. State legal aid is granted to natural or legal Estonia Everyone who is deprived of his or her liberty shall be informed promptly, in h A r t . 2 1 2004 State Legal Aid Act a language and manner which he or she understands, of the reason for the persons in connection with proceedings in an Estonian court or administrative authority deprivation of liberty and of his or her rights, and shall be given the opportunity to notify those closest to him or her. A person suspected of a criminal offence shall also or in protection of their interests in any be promptly given the opportunity to choose and confer with counsel. [...] other manner. 538

539 Country Year of Comments Main Legal Aid Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article Fiji Legal Aid Act No. 10 of 1996 Art. 14(2)(d) (2) Every person charged with an offence has the right – [...] 1996 F (d) to defend himself or herself in person or to be represented at his or her own expense by a legal practitioner of his or her own choice, and to be informed promptly of this right or, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid by the Legal Aid Commission, and to be informed promptly of this right [...] N/A 2002 Legal Aid Act 257/2002 Finland N/A (Oikeusapulaki 257/2002) Act No. 91-647 of 10 July 1991 N/A N/A France 1991 pertaining to Legal Aid (Loi n° 91-647 du 10 juillet 1991 relative à l’aide juridique) 2010 Decree No. 149 – February 16th, 2010 (Décret n° 2010-149 du 16 février 2010) G Art. 1(4) Gabon 4. The right to a defence, in the judicial process, are guaranteed to all[...] Code of Civil Procedure, Arts. (Code de procédure civile, 50-51 Arts. 50-51 ) 2012 Code of Criminal Procedure, Art. 53-1, 75, 80-3 (Code de procédure pénale, Art. 53-1, 75, 80-3) Art. 24(3)(d) h (3) Every person who is charged with a criminal offence - 2008 Legal Aid Act The National Agency for Legal Aid (NALA) Gambia (Islamic is responsible for the management and [...] Republic of the) administration of the legal aid system in (d) shall be permitted to defend himself or herself before the court in person or, at The Gambia. his or her own expense, by a legal representative of his or her own choice; Provided that where a person is charged with an offence which carries a h Legal aid is available in civil and criminal matters punishment of death or imprisonment for life, that person shall be entitled to legal aid at the expense of the State. 2007 Art. 18(5) 5. An arrested or detained person shall be informed about his/her rights and the Law of Georgia on Legal Aid Georgia grounds for restriction of his/her liberty upon his/her arrest or detention. The arrested or detained person may request for the assistance of a defender upon his/ her arrest or detention, the request shall be met. 539

540 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article 1877 Germany Code of Criminal Procedure, N/A The court-appointed lawyer is always paid h N/A by the State. But if convicted, the accused Sects. 140-142, 364a, 364b (Strafprozessordnung) must bear the cost of the proceedings, including reimbursement of the cost for the court-appointed lawyer. Code of Civil Procedure, Sects. 1877 (Zivilprozessordnung) 114-115 Section 114 of the Courts Act 1993 (Act 1. For the purposes of enforcing any provision of this Constitution, a person is h 1987 Ghana Art. 294 Legal Aid Scheme Act 459) provides that the Supreme Court, the entitled to legal aid in connection with any proceedings relating to this Constitution (Act 542 of 1997) if he has reasonable grounds for taking, defending, prosecuting or being a party to Court of Appeal, the High Court or Regional Tribunal may assign a lawyer by way of legal the proceedings. aid to a party to proceedings before the 2. Subject to clause (1) of this article, Parliament shall, by or under an Act of Parliament, regulate the grant of legal aid. Court or Tribunal where it appears desirable 3. Without prejudice to clause (2) of this article, Parliament may, under that clause to the Court or Tribunal in the interests of provide for the granting of legal aid in such matters other than those referred to in justice that the party should have legal aid, h Under the Legal Aid Scheme Act, a person is clause (1) of this article as may be prescribed by or under that Act. 4. For the purposes of this article, legal aid shall consist of representation by a automatically entitled to legal aid if charged lawyer, including all such assistance as is given by a lawyer, in the steps preliminary with an offence punishable by death or life or incidental to any proceedings or arriving at or giving effect to a compromise to imprisonment and is entitled to legal aid for avoid or to bring to an end any proceedings. other criminal offences if unable to afford a lawyer. Legal aid is also available in certain civil matters. Law on legal aid for low-income N/A Greece 2004 N/A citizens (Παροχή νομικής βοήθειας σε πολίτες χαμηλού εισοδήματος) Sects. 15(1) Grenada 1. When a person is detained by virtue of any such law as is referred to in section 14 N/A N/A (d)-(e), (3) of this Constitution the following provisions shall apply, that is to say :- [...] d. he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of the case of the detained person; and e. at the hearing of his case by the tribunal appointed for the review of his case he shall be permitted to appear in person or by a legal representative of his own choice. [...] 3. Nothing contained in subsection (l)(d) or subsection (l)(e) of this section shall be construed as entitling a person to legal representation at public expense. 540

541 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article The defence of the person and his [or her] rights are inviolable. No one may be h The Law on Public Service of Criminal 1997 Decree 129-97 (5 December Guatemala A r t . 1 2 1997), Law on the Public Service sentenced or deprived from his [or her] rights, without being summoned, heard Defense entered into force on 13 July 1998. of Criminal Defence and defeated in a legal process before a competent and pre-established judge and (Decreto 129-97 (5 de diciembre tribunal. de 1997), Ley del Servicio Público de Defensa Penal) Decree No. 11/2011, of 3 Art. 42(3) 2011 3. The accused has the right to choose a defender and be assisted by him in every Guinea Bissau The Cabinet on Legal Information and h February (Decreto No. 11/2011, act of the process, the law should specify the cases and phases in which the Consultation (GICJU), under the Ministry assistance is mandatory. de 3 de Fevereiro) of Justice, provides legal information and consultation at a regional level through Centres of Access to Justice (CAJ), which work jointly with Bar Associations and civil society organisations. H 1864 Haiti Article 24-3 [...] Arts. 24-3 (c), Proposal for the Legal 25-1 c. The accursed must be notified of his right to be assisted by counsel at all phases of the (Proposition de Assistance Act Loi sur l’Assistance légale) investigation of the case up to the final judgment[...] Article 25-1 No one may be interrogated without his attorney or a witness of his choice being present. Rules of procedure of the 1994 Honduras Arts. 82, 83 Article 82 h Only available for criminal cases. The right of defence is inviolable. [...] Program for Public Defence (Reglamento del Programa para Article 83 la Defensa Pública) The State shall appoint counsel to defend indigents and to protect the persons and interests of minors and other incompetents. They shall give legal assistance to them and represent them judicially in defence of their personal liberty and other rights. Hungary 3. Persons subject to criminal proceedings shall have the right to defence at all Act LXXX of 2003 On Legal Aid 2003 Article XXVIII stages of the proceedings. [...] (3) 541

542 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article I India 1987 The Legal Services Authorities Art. 22(5) 5. When any person is detained in pursuance of an order made under any law Act, 1987 providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. N/A Law Concerning Legal Aid N/A 2011 Indonesia (Law No. 16/2011) N/A Both parties to a lawsuit have the right in all courts of law to select an attorney, and Iran N/A A r t . 3 5 if they are unable to do so, arrangements must be made to provide them with legal (Islamic Republic of ) counsel. Iraq N/A Art. 19, Sects. Fourth N/A 4, 11 The right to a defence shall be sacred and guaranteed in all phases of investigation and in the trial. [...] Eleventh The court shall appoint a lawyer at the expense of the state for an accused of a felony or misdemeanor who does not have a defence lawyer. [...] Ireland N/A 1962 N/A Criminal Justice (Legal Aid) Act, 1962 1995 N/A Israel N/A Public Defender Law, 57564-1995 Legal aid is granted in criminal, civil, Presidential Decree, 30 May 2002 h [...] Italy A r t . 2 4 administrative and tax proceedings, as well Defence is an inviolable right at every stage and instance of legal proceedings. 2002, No. 115 (Decreto Presidente Repubblica The poor are entitled by law to proper means for action or defence in all courts. as cases of voluntary jurisdiction. [...] D.P.R. 30 maggio 2002, n. 115) It is granted in all phases and levels of h the proceeding and related proceedings, including enforcement, appeals, security measures, preventive measures, etc. 542

543 Country Year of Comments Main Legal Aid Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Text of the Relevant Article Article No. Sec. 16(6)(c) Jamaica 6. Every person charged with a criminal offence shall – [...] J The Legal Aid Act 1997 The Legal Aid Act, which entered into force h in 2000, provides for legal services to be c. be entitled to defend himself in person or through legal representation of his provided in both criminal and civil matters. own choosing or, if he has not sufficient means to pay for legal representation, to be given such assistance as is required in the interests of justice [...] h The Act establishes the Legal Aid Council which is responsible for administering legal aid. h Art. 34, 37 Japan Legal Support Center, a public Comprehensive Legal Support Article 34 2004 Japan No person shall be arrested or detained without being at once informed of the Act (Act No. 74 of June 2, 2004) corporation established by the charges against him or without the immediate privilege of counsel; nor shall he be Comprehensive Legal Support Act, is detained without adequate cause; and upon demand of any person such cause primarily responsible for administering legal must be immediately shown in open court in his presence and the presence of his aid in both criminal and civil cases. counsel. h Certain provisions in the Code of Criminal Procedure (Act No. 131 of 1948) also address Article 37 [...] the provision of legal aid in criminal matters. These provisions provide that the Court At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use may appoint counsel for an accused person unable to do so by reason of indigency or by the State. where otherwise deemed necessary h Only those defendants facing death N/A Jordan N/A N/A N/A penalty or life imprisonment are granted State-funded legal aid and thus, non- governmental legal aid organisations play a big role in provision of legal aid. K 2. Everyone shall have the right to judicial defence of his rights and freedoms. Art. 13(2), (3) Law of the Republic of Kazakhstan 2013 3. Everyone shall have the right to qualified legal assistance. In cases stipulated by Kazakhstan of 3 July 2013 No. law, legal assistance shall be provided free of charge. 122-V “On State guaranteed legal aid” 543

544 Country Main Legal Aid Year of Article(s) in the constitution related to the right to legal aid or the right to a fair trial Comments Adoption Legislation Text of the Relevant Article Article No. 2016 The Legal Aid Act of 2016 established h Arts. 48, 50 (2) Legal Aid Act Kenya 48. the National Legal Aid Service, the (c), (g), (h) The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice. administrative body for the national legal 50. [...] aid scheme. (2) Every accused person has the right to a fair trial, which includes the right – h Legal aid is mentioned in several legislation: 1. Supreme Court of Judicature Act; (c) to have adequate time and facilities to prepare a defence; 2. Civil Procedure Act; [...] (g) to choose, and be represented by, an advocate, and to be informed of this right 3. Criminal Procedure Code; 4. Children’s Act of 2001; promptly; (h) to have an advocate assigned to the accused person by the State and at State 5. Persons with Disabilities Act; expense, if substantial injustice would otherwise result, and to be informed of this 6. Law Society of Kenya Act; right promptly [...] 7. Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act (No. 56 of 2012) 2009 Law of Kyrgyz Republic “On 5. [...] Since the moment of actual detention a person should be kept safe, such Art. 24(5) Kyrgyzstan State guaranteed legal aid” of person shall be granted an opportunity to protect himself/herself personally, enjoy qualified legal aid from a lawyer as well as have an attorney. 17 July 2009 No. 227 L A r t . 3 1 [... ] A person suspected of the commission of a crime and the accused shall be 2005 Lithuania Law of the Republic of guaranteed, from the moment of their detention or first interrogation, the right to Lithuania Amending the Law defence as well as the right to an advocate. on state-guaranteed legal aid No. X-78 of 20 January 2005 M 1. Every person who is detained, including every sentenced prisoner, shall have the Art. 42(1)(c) Malawi Legal Aid Bill of 2010 2010 h Legal Aid Bureau established by the Legal right – Aid Act 2010 and operating independently [...] from the Ministry of Justice is responsible for (c) to consult confidentially with a legal practitioner of his or her choice, to be administering legal aid services. informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State [...] 3. Where a person is arrested he shall be informed as soon as may be of the grounds Malaysia Act 26 Legal Aid Act 1971 1971 Art. 5(3) of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. a. Everyone has the right to retain and instruct legal counsel at any instance where N/A Art, 53(a), (b) Maldives N/A legal assistance is required. b. In serious criminal cases, the State shall provide a lawyer for an accused person who cannot afford to engage one. 544

545 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article N/A Order No. 2006.05 relating to N/A Mauritania 2006 legal aid (Ordonnance n°2006.05 relative à l’aide juridique) 2. Every person who is charged with a criminal offence [...] Legal Aid Act (Act 57 of 1973) Sects. 10(2) Constitutional right to legal aid is h 1973 Mauritius guaranteed for criminal cases only. (c), (d) c. shall be given adequate time and facilities for the preparation of his defence; However, legal aid is also available for some h civil matters. d. shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense[...] Federal Law on Public Defence Art. 20(B) ( VIII) There are two different legal services: h VIII. Defendant has the right to a lawyer, whom he shall freely choose even from the 1998 Mexico (1) Public defenders, in federal criminal moment of his arrest. If he does not want a lawyer or cannot appoint one at the (Ley Federal de Defensoría Pública) proceedings and federal youth proceedings moment of request, the judge shall appoint a public defender. from investigation until enforcement. The defendant has the right that his lawyer appears in every acts of the process. (2) Legal advisers, in non- criminal cases. Defendant’s lawyer is obliged to appear in all the acts related to defendant’s 1998 General basis on the proceeding. organisation and operation of the Federal Institute of Public Defence (Bases generales de organización y funcionamiento del Instituto Federal de Defensoría Pública) Law on Legal Aid for Indigent Article 16 Mongolia Arts. 16(14), 2013 h Constitution guarantees the right to legal aid in both criminal and civil matters. Defendants The citizens of Mongolia shall be guaranteed to exercise the following rights and 55 h The Legal Aid Center is responsible for freedoms: 14. [...] to receive legal assistance; to have evidence examined; to a fair trial [...] administering the legal aid system created Article 55 by the Law on Legal Aid for Indigent 1. The accused shall have a right to defence. Defendants. h 2. The accused shall be accorded with the professional legal aid in the exercise of Legal aid is provided by both public defenders and private attorneys. the above right at his/her request or as prescribed by law. 545

546 Country Year of Comments Main Legal Aid Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Text of the Relevant Article Article No. Montenegro Article 21 Law on Legal Aid 2011 Arts. 21, 37 h The Legal Aid Service attached to a court is responsible for the administration of the Everyone shall have the right to legal aid. legal aid service. Legal aid shall be provided by the bar, as an independent and autonomous h Legal aid is offered in criminal proceedings profession, and by other services. Legal aid may be provided free of charge, in accordance with the law. and civil proceedings. The services are performed by practitioners who are Article 37 compensated for their work. Every one shall be guaranteed the right to defence, and especially: to be informed in the language he/she understands about the charges against thereof; to have sufficient time to prepare defence and to be defended personally or through a defence attorney of his/her own choosing. A r t . 2 3 While courts appoint defence lawyers to h 1966 Royal Decree Law No. 514- [...] Any detained person has the right to be informed immediately, in a fashion Morocco represent indigent criminal defendants on a 65 on judicial assistance (B.O. which is comprehensible to him, of the reasons [motifs] of his detention and of basis, there is no provision of legal pro bono November 16, 1966). his rights, including that of remaining silent. He must benefit, as well, from juridical aid for civil cases. (Décret royal portant loi n° 514- assistance and of the possibility of communication with his relations, in accordance 65 (17 rejeb 1386) sur l’assistance with the law. judiciaire (B.O. 16 novembre 1966) h Sec. 365 2016 Under the Legal Law, legal aid is only Legal Aid Law An accused shall have the right of defence in accordance with the law. Myanmar available to those arrested, detained or tried (Law No. 10 of 2016) for a crime and for the victims and witnesses of the crime. The Act does not provide for legal aid in civil cases. h The Namibia Supreme Court has held that Arts. 11(5), 1990 Legal Aid Act Article 11 Namibia N 12(e), 95 (h) the provision of legal aid to those who (Act No. 29 of 1990) [...] 5. No persons who have been arrested and held in custody as illegal immigrants would otherwise be unable to afford legal shall be denied the right to consult confidentially legal practitioners of their choice, representation may in certain cases be and there shall be no interference with this right except such as is in accordance necessary to guarantee the right to fair trial with the law and is necessary in a democratic society in the interest of national enshrined in Article 12 of the Constitution security or for public safety. of Namibia (Government of the Republic of Article 12 . Namibia and Others v Mwiliima and Others) [...] e. All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement of and during their trial, and shall be entitled to be defended by a legal practitioner of their choice. [...] Article 95 The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following: [...] h. a legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State[...] 546

547 Country Main Legal Aid Year of Article(s) in the constitution related to the right to legal aid or the right to a fair trial Comments Adoption Legislation Article No. Text of the Relevant Article Constitution provides for legal aid in h 1997 Legal Aid Act, 2054 (1997) Art. 20(2), (10) Nepal [...] 2. The person who is arrested shall have the right to consult a legal practitioner of criminal cases only but the Act does not limit legal aid to criminal matters. her/his choice and be defended from the time of arrest. The consultations held with 8 Central Legal Committee is the h the legal practitioner and the advice given thereon shall remain confidential. Provided that this clause shall not apply to a citizen of an enemy state. statutory body ultimately responsible for administering state funded legal aid, Explanation: For the use of this clause “legal practitioner” shall mean a person who although District Committees, supervised has the legal right to represent any person in any court or office. by the Central Legal Committee, administer legal aid services in each district where the [...] Legal Aid Act has been implemented. 10. Any indigent party shall have the right to free legal aid in accordance with law. Legal Aid Act The Legal Aid Board (‘Raad voor Netherlands h 1. Everyone may be legally represented in legal and administrative proceedings. 1993 A r t . 1 8 2. Rules concerning the granting of legal aid to persons of limited means shall be Rechtsbijstand’) is responsible for the overall laid down by Act of Parliament. administration and implementation of the legal aid system. The Dutch legal aid system operates on h the basis of a threefold model: an online platform Rechtwijzer , Legal Services Counters (primary help) and private lawyers and mediators providing legal aid in more complex or time-consuming matters (secondary help). 9 Everyone who is charged with an offence — Legal Services Act 2011 h Although the Constitution guarantees New Zealand 2011 New Zealand [...] Bill of Rights legal aid in criminal matters only, the Legal Services Act also provides for legal aid in Act 1990, c. shall have the right to consult and instruct a lawyer; and Sects. 24(c), specified civil matters. d. shall have the right to adequate time and facilities to prepare a defence; and Legal Aid provided by the Legal Services (d), (f ) of the [...] h f. shall have the right to receive legal assistance without cost if the interests of Act is administered by the Legal Services New Zealand justice so require and the person does not have sufficient means to provide for that Commissioner, who is employed by the assistance [...] Ministry of Justice. 547 8 For the purposes of this clause, “legal practitioner” means a person who has the legal right to represent any person in any court or office. 9 New Zealand has an uncodified Constitution comprised of a number of instruments including its Bill of Rights Act.

548 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article Art. 34(4), (5) Law No. 260, Organic Law on Any accused has the right, under equal conditions, to the following minimal Nicaragua 1998 guarantees: the Judicial System (Ley Nº 260, Ley Orgánica del [...] Poder Judicial de la República 4. To have one’s participation and defence guaranteed from the very initiation of the de Nicaragua) legal process and to have the time and means adequate to one’s defence; 5. To be granted court appointed counsel when in the initial instance it has not been provided or when there has not been a prior warrant. The accused shall have Regulation of the Law No. 260, 1999 the right to communicate freely and privately with one’s counsel[...] Decree No. 63-99 (Reglamento de la Ley Nº 260, Decreto No. 63-99) Any person accused of a delinquent act is presumed innocent until their culpability Niger Law No. 2011-42 of 14 2011 A r t . 2 0 has been legally established in the course of a public process during which all the December 2011 defining the guarantees necessary for their free defence (“libre defense”) have been assured to procedures for the provision them. [...] of legal aid, and establishing a “National Legal Aid Agency” as a public institution with the mandate to administer legal aid (Loi n° 2011-42 du 14 décembre 2011, fixant les règles applicables à l’assistance juridique et judiciaire et créant un établissement public à caractère administratif dénommé «Agence nationale de l’assistance juridique et judiciaire») Nigeria 36.1. [...] 6. Every person who is charged with a criminal offence shall be entitled to- 2011 Federal Constitution of Nigeria expressly h Legal Aid Act, 2011 Arts. 36.1 (6) [...] (b), (c), obliges the National Assembly to b. be given adequate time and facilities for the preparation of his defence; 46 (4) (b) provide legal aid for indigent persons in c. defend himself in person or by legal practitioners of his own choice[...] constitutional matters. 46. [...] 4. The National Assembly- h The Nigerian Legal Aid Council, a body [...] under the Federal Ministry of Justice, b. shall make provisions- administers legal aid throughout Nigeria (i) for the rendering of financial assistance to any indigent citizen of Nigeria where pursuant to the Legal Aid Act. his right under this Chapter has been infringed or with a view to enabling him to The Legal Aid Act provides for legal aid h engage the services of a legal practitioner to prosecute his claim, and in civil and criminal matters. (ii) for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real. 548

549 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article P The Supreme Court of Pakistan has held in h 2009 Public Defender and Legal Aid 1. No person who is arrested shall be detained in custody without being informed, Pakistan Art. 10(1) Office Ordinance as soon as may be, of the grounds for such arrest, nor shall he be denied the right to Faisal v. the State that under Articles 4 and 9 of the Constitution of Pakistan, the State consult and be defended by a legal practitioner of his choice. [...] must provide legal assistance to accused persons who are poor or indigent. There is therefore a constitutional right to legal aid in criminal matters. Additional provisions on legal aid can be h found in the following legislation: 1. Code of Civil Procedure 1908;. 2. Code of Criminal Procedure 1898;. 3. Pakistan Bar Council Free Legal Aid Rules 1999; 4. Rules for Regulating the Functions of the District Legal Empowerment Committees; 5. Destitute Litigant Fund Rules. Judicial Code of the Republic of Panama Article 22 There is an Institute of Public Defender h 2001 Arts. 22, 217 [...] Persons accused of committing a crime have the right to be presumed Panama, Book I, Title I, Chapter I , under the (Instituto de Defensoría de Oficio) innocent until proven guilty, at a public trial, under due process of law. Whoever is (Código Judicial de la República auspices of the judicial body, composed by arrested shall have the right, from that moment, to legal counsel in all police and de Panamá, Libro I, Titulo I, lawyers appointed by the Supreme Court Capitulo I) judiciary proceedings. of Justice. This matter shall be regulated by law. h There is also a National Service of Voluntary Article 217 Legal Aid, which has a list of voluntary Agreement 239 of 1993, 1993 The means of giving advice and legal defence to those who, because of their lawyers for those cases in which public Supreme Court of Justice economic situation cannot pay for same, shall be established by law, whether from defenders cannot act due to conflict of (Acuerdo 239 de 1993, Corte an official organisation created for this purpose, or through professional associations interest or work overload. Suprema de Justicia) of lawyers recognized by the State. Paraguay Article 16 Organic Law No. 4423/11, on Arts. 16, 17(5), 2011 The defence during trial of persons and of their rights is inviolable. All persons have the Ministry of Public Defence. (6) the right to be judged by competent, independent, and impartial tribunals and (Ley n° 4423/11, Orgánica del judges. Ministerio de la Defensa Pública) Article 17 In the penal process, or in any other [process] in which a penalty or sanction could be handed down, any person has the right: [...] 5. to defend themselves or to be assisted by defenders of their choice; 6. to have the State provide them with a public defender in the case of not disposing of the economic means to pay for one [...] 549

550 Article(s) in the constitution related to the right to legal aid or the right to a fair trial Country Main Legal Aid Year of Comments Adoption Legislation Article No. Text of the Relevant Article The Public Defence Service functions under h Art. 139(14), 2009 Law on the Public Defence Principles and rights of the jurisdictional function are the following: Peru 14. The principle that no person shall be deprived of the right to defence at any the auspices of the General Directorate on Service, Law No. 29360 (16) stage of the proceedings. Every person shall be notified immediately and in (Ley del servicio de defensa Public Defence of the Ministry of Justice. h pública, Ley No 29360) It acts in criminal cases, civil and family writing of the causes or reasons for his detention. In addition, he has the right to cases (including family violence) and cases communicate in person with and be advised by the legal counsel of his choice involving children, youth and the elderly. upon being summoned or arrested by any authority. Supreme Decree No. 013-2009- 2009 [...] jus, adopting the Regulation of 16. The principle of free administration of justice and a free defence for persons of Law No. 29360 limited means, as well as for everyone in those cases stipulated by law. (Decreto Supremo N. 013-2009- jus, aprueban el reglamento de la Ley n. 29360) h The legal aid service is administered by Art. III, Sects. 2007 Philippines Republic Act No. 9406 – Public Sec 11 the Public Attorney’s Office (PAO), an 11, 12 (1) Free access to the courts and quasi-judicial bodies and adequate legal assistance Attorney’s Office Act independent and autonomous office shall not be denied to any person by reason of poverty. attached to the Department of Justice Sec 12 for purposes of policy and programme 1. Any person under investigation for the commission of an offence shall have coordination. the right to be informed of his right to remain silent and to have competent and h Legal assistance is offered to indigent independent counsel preferably of his own choice. If the person cannot afford the 2010 (2) Republic Act No. 9999 – persons in civil, criminal, labour, services of counsel, he must be provided with one. These rights cannot be waived Free Legal Assistance Act administrative and quasi-judicial cases. except in writing and in the presence of counsel. [...] No comprehensive legislation dealing with h Art. 42(2) 2004 Act of 17 December 2004 on 2. Anyone against whom criminal proceedings have been brought shall have the Poland legal aid and no statutory body charged right to defence at all stages of such proceedings. He may, in particular, choose legal aid in civil proceedings with administering it. conducted in EU Member counsel or avail himself - in accordance with principles specified by statute - of h Additional provisions on legal aid can be counsel appointed by the court States found in the following legislation: 1. Act No. 17 of 2004; 2. Act on Procedure in Minor’s Case; 3. Code of Criminal Procedure of Poland (Act No. 6 of 1997); 4. Act on Protection of Mental Health; 5. Code of Civil Procedure; 6. Act on Court Costs in Civil Cases. Applications for legal aid are made to and h granted by the President of the Court or presiding judge of the proceedings for which legal representation is sought. Attorney is appointed by the bar association. 550

551 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Arts. 20(1), (2), Article 20 The Public Defence Service functions under h 2004 Law No. 34/2004, of 29 July, Portugal 1. Everyone shall be guaranteed access to the law and the courts in order to defend amended and republished as 32 (3) the auspices of the General Directorate on those of his rights and interests that are protected by law, and justice shall not be Law 47/2007, 28 August, amend- Public Defence of the Ministry of Justice. denied to anyone due to lack of financial means. It acts in criminal cases, civil and family h ing the rules on access to the cases (including family violence) and cases law and to the courts and trans- 2. Subject to the terms of the law, everyone shall possess the right to legal posing into national legislation involving children, youth and the elderly. information and advice, to legal counsel and to be accompanied by a lawyer before any authority. Council Directive 2003/8/EC of [...] 27 January to improve access to Article 32 justice in cross-border disputes by establishing minimum com- [...] 3. Defendants shall possess the right to choose counsel and to be assisted by him mon rules relating to legal aid (Lei n.o 34/2004 for such disputes in relation to every procedural act. The law shall specify those cases and phases of proceedings in which the assistance of a lawyer shall be mandatory. de 29 de Julho altera o regime de acesso ao direito e aos tribunais [...] e transpõe para a ordem jurídica nacional a Directiva n.o 2003/8/ CE, do Conselho, de 27 de Janeiro, relativa à melhoria do acesso à justiça nos litígios transfronteiriços através do estabelecimento de re- gras mínimas comuns relativas ao apoio judiciário no âmbito dess- es litígios). Korea Legal Aid Corporation is the body Art. 12(4) h 1986 Republic of Korea ) 법률구조법 Legal Aid Act ( (4) Any person who is arrested or detained shall have the right to prompt assistance R responsible for administration of legal aid Art. 27(1) of counsel. When a criminal defendant is unable to secure counsel by his own 1954 Criminal Procedure Act services. efforts, the State shall assign counsel for the defendant as prescribed by Act. The right to legal aid is extended to victims h 1988 Constitutional Court Act (1) All citizens shall have the right to be tried in conformity with the Act by judges of sexual crimes and abuse involving qualified under the Constitution and the Act. children and juveniles. 2012 Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes 2012 Act on the Protection of Children and Juveniles Against Sexual Abuse 1960 Civil Procedure Act 551

552 Country Year of Comments Main Legal Aid Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Text of the Relevant Article Article No. 2007 Article 25 [... ] Republic of Moldova Arts. 25(5), Law on State guaranteed legal 26(1), (3) 5. The detained in custody or arrested person shall be informed without delay on aid the reasons of his/her detention or arrest, and notified of the charges against him/ her, as soon as possible; the notification of the charges shall be made only in the presence of a lawyer, either chosen by the defendant or appointed ex officio. [...] Article 26 1. The right to defence shall be guaranteed. [...] 3. Throughout the trial the parties shall have the right to be assisted by a lawyer, either chosen or appointed ex officio. A r t . 1 9 h Additional provisions on legal aid can be 2013 Every person accused of a crime shall be presumed innocent until his or her guilt Rwanda Criminal Procedure Law (Law found in the following legislation: has been conclusively proved in accordance with the law in a public and fair trial in No. 27 of 2013), Art. 39 1. upreme Court Law (Law No. 3 of 2012);. which all the necessary guarantees for defence have been made available. [...] 2. Law Relating to The Civil, Commercial, 1997 Law on Bar Association Labour and Administrative Procedure (Law No. 03 of 1997), Art. 58 (Law No. 21 of 2012), Art. 23; 3. Law Relating to the Rights and the Protection of the Child (Law No. 54 of 2011). N/A 1884 Legal aid is available in both criminal and h N/A San Marino S Law on Free Legal Aid civil cases. In civil proceedings, legal aid is Gratuito Patrocinio (Legge sul “ ”) Consiglio dei XII (Council provided by the of Twelve), the country’s highest judicial tribunal. In criminal matters a public defender is h appointed for persons who are without legal representation through Law No. 5 of 25.1.1984 (reforme de l’istitution du defenseur public) . h The Penal Code also specifically provides that minors are entitled to legal assistance in their defence. Victims of offences may also receive legal aid. N/A N/A h No legislative framework for legal aid. N/A Saudi Arabia N/A However, legal aid is provided by individual attorneys and non-governmental organisations and also facilitated by the Ministry of Justice. 552

553 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article A r t . 9 h 1978 Ordinance No. 78-35 of [...] The defence is an absolute right in all the stages and in all degrees of the Senegal Additional provisions on legal aid can be 7 September 1978 on found in the following legislation: procedure. judicial organisation, Art. 10 1. Decree No. 2007-554 of 30 April 2007 on (Ordonnance no 78-35 du the institutional structure of the Ministry of Justice, Art. 10 (Décret n° 2007-554 du 30 avril 7 septembre 1978 portant 2007 portant organisation du ministère de la organisation judiciaire, Art. 10) Justice, Art. 10); 2. Organic Law No. 2008-35 of 7 August 2008 on the establishment of the Supreme Court, Arts. 35, 36 (Loi organique n° 2008-35 du 7 août 2008 portant création de la Cour supreme, Arts. 35, 36). Arts. 18(3), Seychelles 18. [...] 1985 Legal Aid Act 3. A person who is arrested or detained has a right to be informed at the time of 19(2)(c), (d) arrest or detention or as soon as is reasonably practicable thereafter in, as far as is 1986 Legal Aid Rules practicable, in a language that the person understands of the reason for the arrest or detention, a right to remain silent, a right to be defended by a legal practitioner of the person’s choice and, in the case of a minor, a right to communicate with the parent or guardian. [...] 19. [...] 2. Every person who is charged with an offence- [...] c. shall be given adequate time and facilities to prepare a defence to the charge; d. has a right to be defended before the court in person, or, at the person’s own expense by a legal practitioner of the person’s own choice or, where a law so provides, by a legal practitioner provided at public expense [...] 553

554 Article(s) in the constitution related to the right to legal aid or the right to a fair trial Country Main Legal Aid Year of Comments Adoption Legislation Article No. Text of the Relevant Article The Legal Aid Board, a body corporate h Sects. 17(2) 2012 The Legal Aid Act, 2012 17. [...] Sierra Leone established by the Legal Aid Act, provides, (b), 28(5) 2. Any person who— [...] administers, monitors and controls the b. is arrested or detained shall be informed immediately at the time of his arrest of provision of legal aid in civil and criminal his right of access to a legal practitioner or any person of his choice, and shall be matters. permitted at his own expense to instruct without delay a legal practitioner of his h Legal aid is provided by legal aid providers (practitioners, civil society organisations, own choice and to communicate with him confidentially. and non-governmental organisations) [...] accredited by the Legal Aid Board. 28. [...] 5. Parliament shall make provision— a. for the rendering of financial assistance to any indigent citizen of Sierra Leone where his right under this Chapter has been infringed, or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim; and b. for ensuring that allegations of infringements of such rights are substantial and the requirement or need for financial or legal aid is real. 3. Where a person is arrested, he shall be informed as soon as may be of the grounds Singapore The Legal Aid Bureau administers the legal h 1995 Art. 9(3) Legal Aid and Advice Act of his arrest and shall be allowed to consult and be defended by a legal practitioner aid scheme established by the Legal Aid and of his choice. Advice Act. h The Legal Aid and Advice Act does not provide legal aid in criminal matters. h The Supreme Court Legal Assistance Scheme for Capital Offences, administered by the Registrar of the Court, offers legal assistance to persons accused of capital offence. h The Law Society of Singapore administers a Criminal Legal Aid Scheme that offers legal aid to eligible persons accused of most criminal matters. Article 47(2). Every person shall have the right to counsel from the outset of Slovakia h The Centre for Legal Aid (the CPP) 2005 Arts. 47(2), Act No. 327/2005 Coll. on proceedings before any court of law, or a governmental or public authority as administers legal aid to those who 50(3) Provision of Legal Aid for provided by law. qualify for it. People in Material Need Article 50 (3). Any person charged with an offence shall have the possibility to h The Centre provides legal aid in domestic prepare his or her defence during such time as may be deemed necessary and shall civil, family, labour and asylum cases. have the right to defend the case by himself or herself and by a counsel. h For criminal matters lawyers (public defenders) are appointed by the Court acting on its own initiative or on the defendant’s making an application for legal assistance. 554

555 Country Main Legal Aid Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Article No. Text of the Relevant Article Arts. 19, 29 h 2001 Legal Aid Act of the Republic of Article 19 The body charged with administering legal Slovenia [...] Anyone deprived of his liberty must be immediately informed in his mother Slovenia (Official Gazette of the aid is the Legal Aid Professional Service. Republic of Slovenia No. 96/04 - h tongue, or in a language which he understands, of the reasons for being deprived Legal Aid is available for both criminal of his liberty. Within the shortest possible time thereafter, he must also be informed and civil matters except for criminal consolidated text, No. 23/08, No. in writing of why he has been deprived of his liberty. He must be instructed offences involving insulting behaviour, libel, 15/14 - Constitutional Court’s defamation and slander, applications for immediately that he is not obliged to make any statement, that he has the right decision, No. 19/15) the reduction of maintenance and damage to immediate legal representation of his own free choice and that the competent disputes involving compensation of non- authority must, on his request, notify his relatives or those close to him of the property. deprivation of his liberty. Article 29 Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights: • the right to have adequate time and facilities to prepare his defence; • the right to be present at his trial and to conduct his own defence or to be defended by a legal representative [...] Somalia Arts. 29(5), Article 29 (5). Every child shall have the right to legal aid paid for by the State if the 1963 The provisional constitution of Somalia h Criminal Procedure Code, child might otherwise suffer injustice. 34(4)-(5), 35 provides under Schedule One (D) that the A r t . 1 5 Drafting Commission shall prioritize drafting Article 34 & Schedule One (D) 4. The state shall provide free legal defence to the people who do not have the projects concerning, among others, “a law in means of doing so themselves. terms of Article 34, concerning the right to free legal aid to defendants in criminal cases”. 5. The state shall provide free legal defence to individuals or communities if they are legally pursuing the public interest. Article 35 (6). Every person who is arrested or detained has the right to choose, and to consult with, a legal practitioner and if he or she cannot afford one, the State must appoint a legal practitioner for him or her. 555

556 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Sects. 28(1) (h), Section 28 h 2014 South Africa Act No. 39 of 2014: The South African Constitution guarantees Legal Aid South Africa Act 2014 1. Every child has the right – the right to legal aid at state expense in 35(2)(c), 35(3) (h) to have a legal practitioner assigned to the child by the state, and at state criminal matters and in civil proceedings (f ),(g) expense, in civil proceedings affecting the child, involving a child if substantial injustice if substantial injustice would otherwise result [...] would otherwise result. Legal Aid South Africa is an independent h Section 35. 2. Everyone who is detained, including every sentenced prisoner, has the right— statutory body established by the Legal Aid South Africa Act to provide, at State’s [...] expense, legal aid and legal advice to (b) to choose, and to consult with, a legal practitioner, and to be informed of this indigent persons as well as to provide right promptly; (c) to have a legal practitioner assigned to the detained person by the state and at education and information concerning legal rights and obligations. state expense, if substantial injustice would otherwise result, and to be informed of h this right promptly [...] In terms of legal aid policy, legal aid is also granted in certain civil cases such as 3. Every accused person has a right to a fair trial, which includes the right— [...] evictions, divorces and administration of estates involving children. (f ) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; (g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly [...] Arts. 19 (7), 2013 h South Sudan The South Sudan Law Society (SSLS) 19. [...] Advocates Act, 2013 (Act No. 135(3), 136 (3) 7. Any accused person has the right to defend himself/herself in person or through a provides free legal advice, mediation 55), Sec. 31 lawyer of his/her own choice and to have legal aid assigned to him/her by the State and representation to clients who cannot where he/she is unable to defend himself/herself in serious offences. otherwise afford these services. Legal aid is also provided by NGOs. 135. [...] h Southern Sudan has a Directorate of Legal 3. Public Attorneys and Legal Advisors shall advise all levels of government, represent them in public prosecution, litigation, adjudication, and conduct pre- trial Aid within the Ministry of Legal Affairs and proceedings. They shall recommend law reform, strive to protect public and private Constitutional Development. rights, advice on legal issues and shall render legal aid. [...] 136. [...] 3. Advocates shall serve to prevent injustice, defend the legal rights and interests of their clients, seek conciliation between adversaries and may render legal aid for the needy according to the law. 556

557 Country Main Legal Aid Year of Article(s) in the constitution related to the right to legal aid or the right to a fair trial Comments Adoption Legislation Article No. Text of the Relevant Article h 1996 Sects. 17(3), Law 1/1996, on free legal aid Spain Section 17 [...] There is a Commission on Free Legal (Ley 1/1996, de asistencia juridical Aid in each province, as well as a Central 3. The arrested person shall be guaranteed the assistance of 24(1), (2), 119 a lawyer during police and judicial proceedings, under the terms to be laid down by gratuita) Commission on Free Legal Aid for those courts whose jurisdiction cover the whole the law country. Section 24 1. All persons have the right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence. 2. Likewise, all have the right [...] to defence and assistance by a lawyer; [...] Section 119 Justice shall be free when thus provided for by law, and shall in any case be so in respect of those who have insufficient means to sue in court. h Arts. 12(1), The State position appears to be that Art. 1978 Sri Lanka 12. Legal Aid Law No. 27 of 1978 13(3), particularly taken together with Art. 13(3) 1. All persons are equal before the law and are entitled to the equal protection of 12(1), provide a right to legal aid. the law. [...] Legal Aid Commission was created in 1978 h 13. [...] 3. Any person charged with an offence shall be entitled to be heard, in by the Legal Aid Law to operate/administer person or by an attorney-at-law, at a fair trial in a competent court. [...] State funded legal aid. Legal aid is available in both civil and criminal matters, as well as for rights violations. It is provided by attorneys-at-law. 10 The Legal Aid and Advice Act and Ordinance European h 1996 3. Everyone charged with a criminal offence has the following minimum rights: [...] Sweden Legal Aid and Advice Act Convention only applies to criminal cases where a victim (c) to defend himself in person or through legal assistance of his own choosing or, if (1996:1619) on Human is seeking legal advice or representation. he has not sufficient means to pay for legal assistance, to be given it free when the (Rättshjälpslagen, (1996:1619) h The Public Counsel Act generally deals Rights, Art. interests of justice so require[...] with the provision of legal aid in criminal 6(3)(c) 1996 Public Counsel Act (1996:1620) matters while the Legal Aid and Advice Act is applicable to all other matters. 1997 Legal Aid Ordinance (1997:404) The Legal Aid Authority, established by the h Legal Aid and Advice Act is the national body responsible for administering the legal aid scheme created by both the Legal Aid and Advice Act and the Public Counsel Act. 557 10 According to Article 19 of the Swedish Constitution, no act of law or other provision may be adopted which contravenes Sweden’s undertakings under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

558 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article 2008 Code of Civil Procedure of 19 Arts. 29(3), Switzerland Article 29 [...] 32(2) December 2008, Arts. 117-123 3. Any person who does not have sufficient means has the right to free legal advice (Code de procédure civile du 19 and assistance unless their case appears to have no prospect of success. If it is décembre 2008, Arts. 117-123) necessary in order to safeguard their rights, they also have the right to free legal representation in court. Article 32 [...] 2007 Code of Criminal Procedure, 2. Every accused person has the right to be notified as quickly and comprehensively Arts. 136-138 as possible of the charge brought against them. They must be given the (Code de procédure pénale du opportunity to assert their rights to a proper defence. [...] 5 octobre 2007, Arts. 136-138) Federal Supreme Court Act, Art. 64 2005 (Bundesgerichtsgesetz) Administrative Procedures Act, Art. 1968 65 ( Verwaltungsverfahrensgesetz) h Thailand Legal aid is provided primarily by non- N/A N/A N/A T N/A governmental organisations and private . pro bono attorneys acting Togo A r t . 1 6 [...] 2013 Law No. 2013-010 of 27 May Every accused [person] has the right to be assisted by counsel at the stage of the 2013 concerning legal aid in preliminary inquiry. Togo (Loi No. 2013-010 du 27 mai 2013 portant aide juridictionnelle au Togo) 2008 Organic Law No. 2008-35 of 7 August 2008 establishing the Supreme Court, Arts. 35-36 (Loi organique n° 2008-35 du 7 août 2008 portant création de la Cour suprême, Arts. 35-36) 1976 Trinidad and Tobago 2. Without prejudice to subsection (1), but subject to this Chapter and to section 54, Sec. 5(2)(c) h Legal Aid and Advisory Authority (LAAA) is Legal Aid and Advice Act Parliament may not — [...] (ii), (d) a statutory body established by the Act to c. deprive a person who has been arrested or detained — [...] administer the State system of legal aid. ii. of the right to retain and instruct without delay a legal adviser of his own choice Legal aid and advice is offered to eligible h and to hold communication with him; [...] members of the public in civil and criminal d. authorise a court, tribunal, commission, board or other authority to compel a matters. person to give evidence unless he is afforded protection against self-incrimination and, where necessary to ensure such protection, the right to legal representation[...] 558

559 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Turkey N/A N/A N/A h No standalone legislation on Legal Aid. N/A However, provision for legal aid is included within the Criminal Procedure Code and Civil Procedure Law. The administration of legal aid is also governed by the Attorneyship Law. h No central governmental body is responsible for the administration of legal aid. Legal aid is instead administered by the Criminal Procedure Units/Centres of local bar associations. Article 107. Justice is dispensed on the basis of equality and rights of defence. [...] 2010 h Legal aid is provided primarily by non- Arts. 107, 108 Turkmenistan Law on Advocacy in governmental organisations and private Article 108. Turkmenistan, Arts. 4, 6-7 . pro bono attorneys acting The right to professional legal assistance is recognized at any stage of the legal proceedings. The legal aid to citizens and organisations is rendered by lawyers, and other individuals and organisations. (3) Every person who is charged with a criminal offence shall – [...] 1998 Uganda h The Poor Persons Defence Act provides Art. 28(2) U The Poor Persons Defence Act (c), (d), (e) c. be given adequate time and facilities for the preparation of his or her defence; for legal aid services to prisoners defined d. be permitted to appear before the court in person or, at that person’s own as “poor persons committed to trial”. It does not provide legal aid in non-criminal expense, by a lawyer of his or her choice; matters. e. in the case of any offence which carries a sentence of death or imprisonment for The Poor Persons Defence Act does not life, be entitled to legal representation at the expense of the State; [...] h establish any administrative body. The Act is instead administered by the judiciary. Ukraine 2011 A r t . 2 9 [...] Everyone arrested or detained shall be informed without delay of the reasons h The Poor Persons Defence Act provides The Law of Ukraine on Free for his or her arrest or detention, apprised of his or her rights, and from the moment for legal aid services to prisoners defined Legal Aid of 2 June 2011 as “poor persons committed to trial”. It of detention shall be given the opportunity to personally defend himself or herself, (Закон України No. 3460-VI or to have the legal assistance of a defender. [...] does not provide legal aid in non-criminal «Про безоплатну правову matters. допомогу» від 02.06.2011 No h The Poor Persons Defence Act does not 3460-VI) establish any administrative body. The Act is instead administered by the judiciary. 559

560 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article United Kingdom of In England and Wales, the Legal Aid Agency h 1999 England and Wales 1. In the determination of his civil rights and obligations or of any criminal charge Human Rights 12 , Act 1998 against him, everyone is entitled to a fair and public hearing within a reasonable is responsible for the development and Great Britain and Access to Justice Act 1999 (as 11 amended by the Legal Aid, Northern Ireland time by an independent and impartial tribunal established by law. Judgment shall Schedule 1, administration of both the civil and criminal be pronounced publicly but the press and public may be excluded from all or part legal aid schemes in England and Wales. Art. 6(1), (3) (c) Sentencing and Punishment of Offenders Act 2012) of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in Northern Ireland h In Northern Ireland, Legal Services Agency 1981 special circumstances where publicity would prejudice the interests of justice. Northern Ireland has the responsibility for The Legal Aid, Advice and [...] administering legal aid. Legal aid is offered Assistance (Northern Ireland) 3. Everyone charged with a criminal offence has the following minimum rights: in criminal and civil matters. Order 1981 [...] c. to defend himself in person or through legal assistance of his own choosing or, if Access to Justice (Northern 2003 he has not sufficient means to pay for legal assistance, to be given it free when the Ireland) Order No. 435 of 2003. interests of justice so require[...] Scotland 1986 h In Scotland, The Scottish Legal Aid is the Legal Aid (Scotland) Act body responsible for administering legal aid. Legal aid is offered for both civil and criminal matters, as well cases involving children. h 1969 United Republic Provision for free legal aid in criminal N/A Legal Aid (Criminal Proceedings) Act Law on Advocacy in proceedings before the court and appellate of Tanzania Turkmenistan, Arts. 4, 6-7 court only. h Legal aid is almost entirely provided by non-governmental organisations who have now formed two umbrella organisations - Tanzania Network of Legal Aid Providers ( TANLAP) and the National Legal Aid Network. 1964 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public Sixth United States of h Right to legal aid in the U.S. is derived 18 U.S. Code § 3006A. Adequate America trial, by an impartial jury of the state and district wherein the crime shall have been Amendment extensively from the U.S. Supreme Court representation of defendants committed, which district shall have been previously ascertained by law, and to decisions that interpret the Constitution. be informed of the nature and cause of the accusation; to be confronted with the Most notably, Gideon v. Wainwright, 372 witnesses against him; to have compulsory process for obtaining witnesses in his U.S. 335 (1963), established the right to favor, and to have the assistance of counsel for his defense. government-paid counsel for individuals who cannot afford attorneys in state felony proceedings. 560 11 Constitution of the United Kingdom of Great Britain and Northern Ireland is uncodified. 12 The Human Rights Act 1998 forms a part of the UK’s uncodified constitution and incorporates the rights and freedoms guaranteed under the European Convention on Human Rights into the laws of the United Kingdom.

561 Country Year of Comments Article(s) in the constitution related to the right to legal aid or the right to a fair trial Main Legal Aid Legislation Adoption Article No. Text of the Relevant Article Decree 297/79 of 29 May 1979 1979 In any of the cases contemplated in the preceding article, the judged, under the A r t . 1 6 Uruguay gravest responsibility, shall take the declaration of the person under arrest within (Decreto 297/79 del 29 de mayo twenty-four hours and shall begin the summary process within forty-eight hours de 1979). at the most. The declaration of the accused must be taken in the presence of his defender. The latter shall also have the right to attend all summary hearings. 1979 Decree 674/979 of 20 November 1979 (Decreto 674/979 del 20 de noviembre de 1979) Decree 48/80 of 24 January 1980 1980 (Decreto 48/80 del 24 de enero de 1980) 1980 Decree 271/980 of 13 May 1980 (Decreto 271/980 del 13 de mayo de 1980) h The Public Defence is a body of the justice All judicial and administrative actions shall be subject to due process, therefore: A r t . 4 9 2008 Venezuela (Bolivarian Organic Law on Public Defence V system, which has functional financial and Republic of ) 1. Legal assistance and defence are inviolable rights at all stages and levels during (Ley Orgánica de la Defensa the investigation and proceeding. Every person has the right to be notified of the administrative autonomy, and is monitored Pública) by the Supreme Court of Justice. charges for which he or she is being investigated, to have access to the evidence and to be afforded the necessary time and means to conduct his or her defence. [...] h Art. 31(4) Vietnam 4. Any person who has been arrested, held in custody, prosecuted, brought to trial in 2006 Article 5 of the Law on Legal Aid provides Law on Legal Aid that legal aid is available only in cases violation of the law has the right to self-defend or to seek the assistance of defence from lawyers or other people. “related to legitimate rights and interests of legal aid beneficiaries and must not fall into business or commercial domains”. h The administrative body responsible for state funded legal aid is the National Legal Aid Agency under the Ministry of Justice, which works with Provincial Legal Aid Centres. 561

562 Country Year of Comments Main Legal Aid Article(s) in the constitution related to the right to legal aid or the right to a fair trial Legislation Adoption Text of the Relevant Article Article No. Art. 18(2) 1967 Legal Aid Act 2. Every person who is charged with a criminal offence – [...] Zambia The Legal Aid Act provides for legal aid in h Z (c), (d) c. shall be given adequate time and facilities for the preparation of his defence; criminal and civil cases for persons lacking d. shall unless legal aid is granted to him in accordance with the law enacted by the means to retain counsel. Parliament for such purpose be permitted to defend himself before the court in h The provision of legal aid is managed by person, or at his own expense, by a legal representative of his own choice; [...] a corporate body known as the Legal Aid Board. Sec. 31 h There is a Legal Aid Directorate consisting 1996 The State must take all practical measures, within the limits of the resources Zimbabwe Legal Aid Act of the Director and law officers. available to it, to provide legal representation in civil and criminal cases for people who need it and are unable to afford legal practitioners of their choice. It provides legal aid in connection with any h criminal, civil or other related matter. 562

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