11. March 08
The draft which amends the procedure for the provision of state legal assistance in a manner that the advocate providing state legal assistance is to be appointed by the bar association was sent by the Ministry of Justice to other ministries for approval.
According to the Deputy Secretary-General of the Judicial Administration Policy Department of the Ministry of Justice, Marko Aavik the objective of the draft is to improve access to an advocate who is able to ensure the reasonable quality of assistance for the least privileged persons and to amend the financing system of state legal assistance.
“We currently apply a system to criminal matters with state legal assistance according to which the investigator and prosecutor may choose the appropriate opposing party,” explained Aavik. “Such a system is not suitable for a democratic state based on the rule of law.”
In the beginning of this year the audit conducted by the Internal Audit Department of the Ministry of Justice showed that in case of criminal matters the investigators play an important role in choosing the advocate. The main selection criterion applied by an investigator is the speed of finding an advocate and the speed of conducting the formalities and only less than 10% of the investigators are guided by the advocate’s quality of work.
According to Aavik the present system does not thus create the necessary conditions for those in need of assistance to receive good-quality legal assistance and this could have severe and irreversible consequences for the fundamental rights and freedoms of individuals.
“In view of this, the draft amends the procedure for assigning the providers of state legal assistance in such a manner that an advocate is to be assigned only by the bar association,” Aavik stressed. “This means that the investigators and prosecutors are no longer involved in finding advocates and thus they no longer have the possibility to choose a suitable opposing party."
The abovementioned audit also showed that the current financing system applied to state legal assistance is not practical and does not promote the reasonable use of state budget funds. Therefore, after the passing of the state budget, the rates of state legal assistance will be determined by the leadership of the Bar Association, taking also into account the amount of resources allocated in the state budget for the provision of state legal assistance.
“The Bar Association has the necessary know-how based on which it can determine the most reasonable and motivating rates for the advocates depending on the level of complexity of the matter. This will make the financing of state legal aid more flexible and create the prerequisites for the better remuneration of the advocate providing state legal assistance,” Aavik explained.
The draft was prepared in cooperation with the Bar Association.
