Draft Law on Free Legal Aid Limits the Right to Access Justice

Monday, 6 August 2018

Draft Law on Free Legal Aid Limits the Right to Access Justice

Civil society organisations are concerned about the provisions contained in the Draft Law on Free Legal Aid, which directly affect the right to effective and equitable access to justice for all persons in need of this type of assistance.

The Law on Free Legal Aid has been pending for more than 12 years. During this time, lawyers and attorneys-at-law engaged in civil society organisations have provided free legal aid and some even participated in the Working Group that produced the 2015 Draft. The provisions from the current Draft significantly deviate from the provisions proposed by free legal aid providers based on their extensive experience.

Although the Ministry of Justice, at the time of publishing the latest Draft Law, announced that it had corrected the text amending it in accordance with the remarks submitted, the most important remarks made by the civil society organisations listed below, as decades-long providers of free legal aid, were not accepted.

This relates primarily to the limited possibilities of legal aid provision by lawyers and attorneys-at-law engaged by CSOs, who have performed this activity, in absence of an adequate law, over the last 20 years. The Draft Law allows CSOs to provide free legal aid only on the basis of the Law on Asylum and the Law on the Prohibition of Discrimination, ignoring other laws, such as the Law on Public Information and Media, which also envisages this activity to be performed by CSOs.

The Draft Law brings confusion to the existing legal provisions by introducing a very vague provision according to which attorneys-at-law shall provide free legal aid on behalf of the CSOs legally entitled to provide free legal aid. We recall that the Law on Civil Procedure stipulates that the legal representative of a party may be an attorney-at-law, relative or spouse, representative of free legal aid service, lawyer that passed the bar exam representing the legal entity in which he or she is employed, and a representative of a trade union. Moreover, the smallest part of free legal aid services are in-court representations or representations before state authorities, while most of them consist of free legal advice and filing submissions.

Is Serbia so rich that it can afford to have attorneys-at-law provide all types of free legal aid - ranging from legal advice to representation, and will attorneys-at-law be able to respond to all the needs of free legal aid seekers? Instead of the state sharing the responsibility for free legal aid provision among all interested providers that would help each other in the best interest of the citizens of Serbia, the Ministry of Justice presents the Draft Law that will not be economically viable if adopted.

The Draft Law directly discriminates against lawyers as service providers on the basis of the place of their employment or engagement. It is unclear why a lawyer employed in local self-government is allowed not only to provide free legal aid, but also to issue decisions granting the right to free legal aid, while a lawyer employed with social welfare centre, court, prosecutor’s office or CSO is not allowed to do so?

This affects primarily the citizens in need of legal assistance because the Draft Law directly links the means test with the right to free legal aid equalising it with the means test for social assistance and the right to child allowance. This means that all individuals who do not fall into this category, or some of the categories specified in the law, shall be denied this type of assistance.

It is unacceptable that a law whose purpose is to facilitate effective and equitable access to justice for the most vulnerable groups of citizens, in this case the Law on Free Legal Aid, limits this right by derogating the existing legal provisions and recognising the right to free legal aid to a small group of persons, while not allowing the provision of assistance by any CSO lawyers who have been performing this work for years.

Civil society organisations involved in the protection of human rights do not request state funding for free legal aid activities, but they ask for allowing civil society organisations to continue providing free legal aid to a large group of citizens who need this kind of assistance in order to protect and exercise the rights guaranteed not only by the Constitution but also by numerous international documents, and above all the right to access justice.

The statement is signed by:

The Lawyers' Committee For Human Rights – YUCOM

Civic Initiatives

Belgrade Centre for Human Rights

Policy Center

Helsinki Committee for Human Rights

Child Rights Center

International Aid Network - IAN

CHRIS - Network of the Committees for Human Rights in Serbia consisting of:

- Committee for Human Rights Negotin

- Committee for Human Rights Valjevo

- Committee for Human Rights Bujanovac