4. LEGAL AID

4.1. General Remarks

In the Bulgarian Constitution, the CCP (Criminal Procedure Code) and other acts of Parliament, one can read an obligation for the Government to provide legal representation in court for those who do not have the means to afford it. In practice, all judicial practitioners in Bulgaria have assured me that these provisions are a sort of dead letter, as well in criminal as in civil cases. Free legal aid is in Bulgaria hardly noticeable. The result of these bad provisions is that the average citizen do not have the possibility to led himself represented in court by an attorney. This information differ from the information received from the MJELI.

In the field of legal aid several initiatives have already been taken by various parties active in Bulgaria.A distinction has to be made between activities to provide free legal aid and activities focussing on the so-called legal clinics. Both activities aim at providing legal aid to the citizens, primarily focussing on those who need it most. Within the scope of the first initiative, The Open Society Institute set up an office in Plovdiv and in Sofia where free legal aid is provided to plaintiffs at the European Court of Human Rights in Strasbourg. The idea of this office is to provide all necessary assistance, free of charge, to persons who want to bring a case to court in Strasbourg. The aid is provided by specialised lawyers in the field of human rights who are already active in the Strasbourg court. The office started as a pilot, but the Open Society Institute is planning to make it a structural activity in its programme. Furthermore, the Open Society Institute, together with the Constitutional & Legal Policy Institute (COLPI) started, in co-operation with the law faculty of the University of Plovdiv a legal clinic. The idea behind these legal clinics is to create a place where people can go to ask for information on legal matters. The legal clinics are run by law students, under the guidance of professional lawyers and supported by the university under which they are brought. The work at a legal clinic is considered as part of the basic legal education of the participating student and is included in the university curriculum. The students receive credits for his work. The effect of the legal clinics is twofold: the clinic provides free legal aid for persons that are unable to pay a lawyer and at the same time will help the practical training of the students. Furthermore, the legal clinics will help to diminish the workload of the courts, because they function as a sort of filter on the amount of cases that will be brought to court.

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4.2. Concrete Project Plans Proposed

For the administration of justice to work the way it should in a democratic society, it is important that every one has access to court when so desired. A well functioning, balanced and closed system of legal aid is imperative to guarantee access to court. The aim of the system of legal aid is creating the opportunity for legal assistance at affordable prices for all citizens. This does not only ask for funding for the provision of the actual aid, but also for regulations describing the system and the organisation responsible for putting the system into practice. Besides the fact that a system of legal aid provides the necessary entrance to justice, it will also regulate the amount of cases taken to court. Before a court procedure will be started, an experienced lawyer will revise the subject matter and advise on the possible actions to take. In a considerable amount of cases the information thus provided and advise given will be sufficient to settle the dispute without going to court. This directly affects the workload of the courts, because they will be able to focus on the more complex matters. Yet, a system of subsidised legal aid will still leave the opportunity to go to court.

Concrete actions to be taken in this respect are:

• Revise the current system of legal aid. In the current system legal aid is mandatory only in more serious penal cases. Nevertheless, the regulations concerning this matter only state that legal assistance in certain cases is mandatory. Without a system backing up these provisions, they remain more or less a dead letter. A closed system of legal aid should see to the existence as well of provisions that oblige the lawyer who is approached to provide the legal assistance to actually give that help and, furthermore, to the existence of regulations on the payment of the lawyer who is thus involved in the assistance of a client. The current system does not include provisions on legal aid in administrative and civil cases, nor in other penal cases than the above mentioned. In the revision of the current system, an evaluation should be made of the functioning of it. This project should be a co-operation between the MJELI, the Judiciary and the Bar. Having in mind the fact that it is the Bar that is most involved in the issue of legal aid, it should be considered to nominate the Bar as the leading, managing and responsible institute in this project.

• Strengthening the existing legal clinics and establishing new ones at all law faculties. To bring legal assistance as close to the public as possible and make the aid accessible and approachable, expanding the initiative of legal clinics to all universities should be considered. The system is pretty cheap and has the advantage that there is a positive side effect for the students involved. They can learn in practice and will be better prepared for the job market. Moreover, including this apprenticeship into the curriculum at the law faculties the quality of the education will improve. This will also have a positive effect on the possibilities of selection and recruitment for the Judiciary on the longer term. Co-operation should be sought with both the law faculties of the universities and the local Bar Associations who should deliver the experts to coach the students.

• Consider possibilities for establishing funds for providing legal aid. Besides necessary amendments to the applicable regulations, the creation of funds to pay for the legal assistance provided has to be considered. Since providing legal aid is in itself a responsibility of the state, the funding should be taken over by the Bulgarian State in due time, for as far as the funds to be created will for a start be filled by other institutions than the state. It must be regarded whether such a fund should be allocated to the National Bar Association as a separate fund or be added to the national budget / the budget of the MJELI.

• Provide schooling and training in the field. Both lawyers, judges and public prosecutors should learn to deal with matters of legal aid. Special training programmes or seminars to exchange information and knowledge in this field should be developed.

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