Comments on the Draft Law of Free Legal Aid

Introductory Observations

The legal system, which is included in the Constitution of the Republic of Kosovo , among other things, guarantees high standards of protection of the human rights, which are recognized by the international instruments, which are empowered in Article 22 of the Constitution. Also, advantage was given to the international instruments in cases when the local legislation is in contradiction with them. Among these instruments, the European Convention on Human Rights, recognizes guaranteeing the right to a fair trial, respectively, guaranteeing the right to free legal assistance.

Specifically, Article 24 of the Constitution of the Republic of Kosovo , in three sections guarantees the right to equality before the law, which inter alia stipulates that… “Everyone enjoys the right to equal legal protection without discrimination”.

Also, taking into consideration international and local reports on the scale of poverty and unemployment in Kosovo, which give a clear indication of the economic and social opportunities for the citizens of Kosovo to get the opportunity for legal representation, and especially the Report of the OSCE Mission in Kosovo regarding the quality of legal services in Kosovo, the adoption of such a law will be helpful not only in the legal security of citizens but will also provide better opportunities for adequate and effective representation to avoid disparities and the potential damage that may incur this category of citizens.

The legal system of a democratic state must provide entirely equal access without any distinction to all its citizens. Unfortunately, in the Republic of Kosovo , which aims to become a state of modern Euro-Atlantic democracy, there is a large category of poor citizens, which means that the realization of their rights and interests in legal proceedings often remains unfulfilled.
To avoid disparities and the potential damage that might incur this category of citizens it was very necessary to build a sustainable free legal aid system, given that in Kosovo, in the past, such a system did not exist, and the need for the existence of this system is a requirement of the Council of Europe and of the commitment that the Republic of Kosovo has accepted as necessary in the field of judicial reform.

These requirements and commitments coincide also with the provisions of Article 6, paragraph 1 of section 3 c of the European Convention of Human Rights, which require guaranteeing the right to a fair trial, respectively, the right to free legal aid.

Findings

According to the Free Legal Aid Law, the provision and implementation of free legal aid is carried out through appropriate mechanisms (the Council and the Legal Aid Agency), where the Council as the basic authority exercises direct supervision of the Agency which provides free legal aid. We consider that such a definition raises the free legal aid institution at the deserved level, making the Council independent, respectively responsible only before the Assembly of the Republic of Kosovo , which based on its mechanisms, elects and dismisses it.

The Draft Law defines the free legal aid as a right of an individual, gained (recognized) by the competent authority of this institution, a definition which attempts to do a rough identification of the applicants, respectively the beneficiaries of this assistance.

A very important part of this Draft Law is also the implementation of free legal assistance without any discrimination (national, racial, religious, gender, ideological, etc).
The Draft Law, compared with the current UNMIK’s Regulation No.2006/36, and the laws of neighboring and regional states, presents a text with more provisions that are more summarized, more suitable, convenient and generally more advanced.

As for the report on the need of the existence and operation of NGOs, with free legal assistance, the Draft Law makes them even more compatible giving them the opportunity to be mutually completed.

Suggestions

Despite these views and findings, we at CRP/K suggest as follows:

·        The Free Legal Aid Council, in Article 13, par. 1, is defined as an independent body which is elected by the Kosovo Assembly. The same article stipulates that… “The Free Legal Aid Council… the fundamental institution that performs its functions independently from other public institutions, and without instructions and intervention from any person, and exercises direct supervision of the Agency”.

            While in par. 3 of the same article it is stated that “The Council members are appointed by the Assembly of the Republic of Kosovo from among candidates proposed by the following institutions:

3.1. Ministry of Justice;

3.2. Ministry of Labor and Social Welfare;

3.3. Ministria for Communities and Return;

3.4. Ministry of Economy and Finance;

3.5. Kosovo Chamber of Advocates;

3.6. Supreme Court;

Therefore, four of the seats for council members are reserved for the representatives of government branches who at the same time constitute the majority of the Council. As these members are simultaneously representatives of the government, this in absolute terms does not meet the independence criteria and is in full contradiction with the Paris Principles on Independent Institutions.

• The Draft Law on Free Legal Aid, with the relevant provisions, should expressly exclude legal entities the right to free legal aid, as there are and there will be legal entities that exercise their rights, who are under difficult financial conditions, will be in an equal situation with the applicants and beneficiaries, respectively the individuals of this assistance.
  
   

• The Draft Law, in a more specific way, to include the most vulnerable groups of our society as follows: the elderly, children, victims of domestic violence, persons with disabilities, asylum seekers, etc.

• The Draft Law, with a provision in the appropriate part of the text, is supposed to determine that the free legal aid providers should offer assistance responsibly and in accordance with the rules of professional ethics.

• We at CRP/K consider that the Draft Law should also contain the provision on the right of the beneficiary – the applicant to translation-interpretation, when she/he does not understand the language in which he is counseled or is provided with legal aid, or is deaf, numb, etc. Translation and interpretation relate to the time to the period until the applicant contacts and communicates with the adviser at the Agency, office etc, and not at the time when he is before the court or administrative body, when it is known that on the basis of which law it was ensured. 

• The provision of Article 32 of the Draft Law on Free Legal Aid stipulates that NGOs which provide legal services authorized according to the criteria established by the Council, upon proposal of the Director of the Agency. This legal provision does not specify how and in what ways NGOs should provide legal services based on the Council’s criteria. It is known that NGOs are independent legal entities, thus they should provide legal services based on the mission and vision for which they are established. We at CRP/K may conclude that this provision should be amended and clarified in a way that determines the exact powers and duties of NGOs in the provision of legal services when a NGO enters into partnership with the Legal Aid Agency.

• Article 7 sets out the authorized services as primary and secondary. Secondary representations, under par. 2.3, foresee representation in civil, administrative and criminal proceedings. While, at the same time, Article 10, par. 3, stipulates that “The secondary legal aid is provided to all persons whose total household income are lower than the average household income”.
  
  On this basis, there are serious doubts which imply the creation of a legal collision between this provision and the provisions of the Criminal Procedure Law which provides for mandatory protection for criminal acts for which a punishment for more than 5 years is foreseen.
  
  This would create a legal uncertainty over the advantages of the implementation of legal provisions and the possibility abuse to the detriment of the parties. It would therefore be necessary to have clarification on this provision.

• In general there are no clear provisions on the accountability/responsibility of the institution which provides free legal aid, with the exception of disciplinary responsibility, but it remains unclear what remedies may be available to the party if damage is caused due to inadequate legal representation (request for effective remedies).