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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