Project: Promoting Human Rights and Access to Justice for Social Inclusion and Legal Empowerment (PHASE Project)
Quality of Legal Aid Services: capacity needs assessment of the National Council for State Guaranteed Legal Aid
UNDP approach to Legal Aid and Access to Justice
Access to justice is a vital part of the UNDP mandate to reduce poverty and strengthen democratic governance. Within the broad context of justice reform, UNDP’s specific niche lies in supporting justice and related systems so that they work for those who are poor and disadvantaged. Moreover, this is consistent with UNDP’s strong commitment to the Millennium Declaration and the fulfillment of the Millennium Development Goals. Empowering the poor and disadvantaged to seek remedies for injustice, strengthening linkages between formal and informal structures, and countering biases inherent in both systems can provide access to justice for those who would otherwise be excluded.
UNDP is committed to using a human rights-based approach in its programming, guided by international human rights standards and principles. Access to justice is a basic human right as well as an indispensable means to combat poverty, prevent and resolve conflicts.
Legal awareness can help disadvantaged people understand they have valuable rights, such as protection from: forced evictions, forced labor without pay, or torture. Remedies for violations of such rights often require the intervention of lawyers. Costs associated with the services of legal counsel and legal processes tend to discourage those who cannot afford them from seeking just remedies. Legal aid support can counter some of these impediments.
Availability, affordability and adequacy are the three major challenges faced by poor people and other disadvantaged groups when it comes to legal aid. Legal aid, like legal awareness, requires the intervention of both government and non-government actors.
Government legal aid schemes include public defence systems and other forms of financial and psycho-social support, such as exemptions in procedural costs and social services to victims and witnesses. Local governments can also be actively involved if they have the capacity to provide legal aid to the poor, by implementing legal aid or mediation services (e.g. deployment of public defenders and other legal counsels for free).
UNDP Bratislava Regional Center’s work with Bar Associations and Legal Aid Councils
The Bratislava Regional Centre (BRC) links the country offices and UNDP's Regional Bureau for Europe and the CIS headquarters in New York. The BRC supports country offices by providing policy advice and backstopping services delivered by UNDP’s Bureau of Development Policy, as well as by RBEC’s regional specialists. The BRC also manages regional projects (conducted in at least three countries), and helps to capture and spread development successes and best practices throughout the region.
Legal profession reform faces shared yet distinct challenges in different regions of the world. In Eastern Europe and Eurasia, advocates (criminal defense attorneys), prosecutors, and judges continue to view themselves as belonging to distinctly different and unequal professions, with prosecutors at the top of the hierarchy. Unlike their counterparts in the procuracy and, to a lesser degree the judiciary, advocates are generally not well respected within or outside the legal community. This ultimately weakens their ability to render high quality legal services to their clients or to advocate on behalf of their own profession (http://www.abanet.org/rol/programs/resource_legal_profession_reform.html).
The lack of capacities of bar associations and legal aid councils and weak enabling environment, minimal financial support and lack of interest on the part of governments, contributes to a situation in which major part of the population cannot obtain qualitative legal advice or equal access to justice.
Since 2009, UNDP Bratislava Regional Center has started a new initiative to consolidate available information, analyze it and raise the awareness of the practitioners working in the area of human rights protection and promotion about issues and problems faced by national bar associations in Caucasus and Central Asia.
The following activities have been undertaken under this initiative:
- Analysis of the legislation regulating legal profession in Caucasus and Central Asia – based on national studies.
- Analysis of the legal aid systems in Caucasus and Central Asia – based on national studies.
- Two capacity assessment missions in Georgia and Tajikistan.
- Two regional meetings of bar associations and legal aid councils from FSU in Kiev (2010) and Izmir (2011).
Context of the Republic of Moldova
The Law on State Guaranteed Legal Aid (the Law) was adopted in 2007 and came into force in July 2008. Before 2008 the State guaranteed legal aid was provided by the National Bar Association of the Republic of Moldova, which was not always effective, and has also provided police investigators with the opportunity to involve convenient advocates into the criminal cases.
The Law changed the system, breaking up the direct ties between investigators and advocates and setting up cases monitoring mechanisms. National Legal Aid Council was set up to govern the State guaranteed legal aid system. Certain improvements have been achieved since that time. However, concerns remain on the quality of legal aid, which is mostly related to the ethical values of the individual advocates participating in the legal aid system. The National Legal Aid Council needs to be supported in the development of appropriate quality assurance mechanisms.
508 advocates provided free legal aid in contraventional and criminal cases for 27587 persons within the State guaranteed legal aid system in 2011.
Until 2012 the scope of legal aid was limited to criminal cases. However, since January 2012 it was expanded towards noncriminal cases, where the demand for legal aid could be much more voluminous.
A legal aid study (to be published in October 2012) has explored the issue of quality of publicly funded legal services. The main conclusion was that ex official appointed defence counsels are paid only a fraction of the fees they charge their private clients. The national reports highlight concerns about the quality of the publicly funded legal services. In addition, the beneficiaries of publicly funded legal aid have little incentive and capabilities to control the quality of the services provided. In the countries where there is a functioning authority responsible for the criminal legal aid system there is an institutional actor motivated to control quality and make guarantee that the tax payers’ money is spent efficiently, though often these institutions do not have a workable criteria for the assessment of quality. What can be done is to refine quality standards in consultation with the involved stakeholders and organize process of systemic monitoring of the quality of publicly funded legal services in criminal matters.
The issue of funding of access to justice and namely the systems of subsidized legal aid is related in the history of the institution and reflects its policy priority. Underfunding is a challenge for every modern legal system. Based on national studies, it is clear that insufficient funding is part of the accepted status quo. Moreover, in combination with the dubious quality of the legal services delivered by underpaid legal provider, underfunding of the subsidized legal aid schemes is the major challenge for the accessibility of justice in the reviewed counties. At the same time, absence of the criteria and mechanisms to control the quality is another layer of the problem.
Three countries of the FSU, Georgia, Moldova and Kyrgyzstan, have introduced a new system for legal aid provision. A specialized body, Legal Aid Council, is responsible for legal aid and distribution of the budget funds for this purpose.
UNDP BRC is looking to conduct capacity needs assessment of the National Legal Aid Council (NLAC) in Moldova with a focus on quality of legal aid. NLAC has agreed to undertake this exercise taking into account the terms and conditions outline in this document.