Veiksmingos teisinės pagalbos link: tarptautiniai teisiniai ir praktikos standartai

International community widely recognizes that legal aid is an essential element of a functioning criminal justice system that is based on the rule of law, a foundation for the enjoyment of other rights, including the right to a fair trial, and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process. The provision of legal aid is no longer regarded as a charity to indigent persons but as an obligation of the community as a whole. At present, the right to legal aid is widely recognised, as well as right to free legal aid in cases where a person does not have sufficient means to pay for it and where the interests of justice so require. Recently, however, international documents moved one step further. It is increasingly emphasized that legal aid should not only be free of charge but also effective. The quality of legal aid is receiving increasing attention also in national systems. However, the quality of legal aid remains an abstract concept that is understood differently in different countries. International and EU documents also do not provide definitions of the content of legal aid quality. Seeking to contribute to the debate on the quality of legal aid, this scientific monograph is dedicated to the issues of effectiveness, and more generally, to quality of legal aid in criminal proceedings. The authors of this monograph seek to crystallize the essential elements and denominators of legal aid quality – legal aid quality standards, which indicate what quality and effective legal aid must be. When preparing this monograph, the researchers used a variety of research methods commonly used in the legal sciences. Systematic analysis, comparative, logical-analytical and deductive research methods were applied through the study. The monograph also draws on the results of empirical research carried out in the framework of the project “Enhancing the Quality of Legal Aid: General Standards for Different Countries (QUAL-AID”): questionnaires and interviews with experts and legal aid recipients in three project partner countries (Lithuania, Germany and the Netherlands), the findings of expert discussions and seminars organised during the project, and an analysis of national legal aid systems. The research is structured into four chapters: (i) “Right to legal aid in international and regional instruments” (ii) “Right to legal aid in the case law of the European Court of Human Rights” (iii) “Legal aid practice standards” (iv)“Assessing the quality of legal aid” The first chapter “Right to legal aid in international and regional instruments” analyses the right to legal aid throughout international and regional (European) instruments. It seeks to identify how the right to legal aid has historically been established and when attention began to be paid to its quality. Having performed historical overview, this chapter focuses on the documents of the United Nations, the Council of Europe and the European Union adopted during the last decade. It analyses their content and examines what specific aspects of legal aid quality and requirements for the evaluation of legal aid are directly referred to in these documents. In addition, the chapter pays a considerable attention to soft-law instruments and declarations of international conferences, as these documents allow to reveal with more clarity the elements of the concept of ‘quality of legal quality’ reappearing in recent years. Discussing the right to legal aid in international and regional instruments, the authors highlight, that for a long time, the regulation of the right to legal aid at both the international and regional level was limited to the definition of its scope ratione personae and ratione materiae and the determination of the conditions for its realization. However, in recent years the focus shifted to the quality of legal aid. At the international level, the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, adopted in 2012 was the first international instrument entirely dedicated to the right to legal aid. The document set global standards for legal aid and urged States to establish, strengthen and expand legal aid “to the maximum extent possible.” As to EU level, the EU instruments more clearly refer to legal aid since 2000 when the Article 47 of the Charter of Fundamental Rights directly reaffirmed the right to free legal aid stating that legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. While the right to legal aid was consistently repeated in other EU instruments, the quality of legal aid did not come so much into focus until in 2013 when the Commission of the EU adopted Recommendation on the right to legal aid for suspects or accused persons in criminal proceedings. This document presented several very important recommendations as to effectiveness and quality of legal aid. The EU directive 2016/1919 on legal aid is the most important document in EU regulating the right to legal aid and setting its quality standards. Its Article 7 (Quality of legal aid services and training) is specifically dedicated to quality of legal aid. Although the directive does not provide detailed standards for ensuring the quality of legal aid, the mere fact that a separate article of the Directive is devoted to the quality of legal aid is important. This encourages states to consider whether the legal aid provided in their systems is appropriate or whether further improvements are needed. In addition, the directive provides some guidelines, emphasizing the need for training, the need to ensure the possibility of replacing a lawyer who may be inadequately providing services, The second chapter of the monograph “Right to legal aid in the case law of the European Court of Human Rights” is devoted to the analysis of the jurisprudence of the European Court of Human Rights. Article 6 of the ECHR enshrines the right to a fair trial, which includes the right to legal aid. The content of this briefly defined right has been clarified in more detail in ECtHR cases, which have identified different requirements for the quality of legal aid. In this context, the second chapter examines in great detail the case law of the ECtHR as regards Article 6 of the ECHR and in particular as regards the right to legal aid. The chapter looks for common denominators among the judgments of the ECtHR delivered in different periods. In addition, a separate section is devoted to ECtHR judgments dealing with quality requirements for legal aid. The authors conclude that the European Court of Human Rights has contributed significantly explaining the meaning, conditions and qualitative requirements of legal aid. In accordance with its case law, mere appointment of a lawyer is not enough to fulfil the State’s obligation to provide effective legal assistance. From lawyer’s side, at least some performance of legal aid lawyer of basic quality is needed; from the side of legal aid administering institution, it should ensure sufficient time and facilities for an officially appointed lawyer to prepare for a case and should rectify the situation if the appointed lawyer is manifestly failing to perform its duties. The third chapter “Legal aid practice standards” discusses the content elements of legal aid quality and the practical standards of legal aid quality. The chapter is based on examples of good state practice and research conducted by the authors. In the monograph, the authors defined the legal aid quality standards as criteria and principles that indicate what could be considered as quality legal aid. The authors distinguished the following main types of legal aid quality standards: (i) standards for the legal aid system. They indicate what the characteristics and elements of the system should be and what mechanisms and measures should be implemented in the national systems in order to achieve a high quality of legal aid (this form of standards can also be seen as legal, administrative and economic preconditions for the provision of quality legal aid services); (ii)standards for individual legal aid providers, i.e. a set of standards that should be followed by legal aid providers in order to ensure the high quality of the legal aid services. These standards cover elements of an individual lawyer’s activity in the provision of legal aid services such as representation, the quality of legal documents produced, compliance with ethical requirements, etc. Several conclusions of the analysis should be noted here. Legal aid systems involve different bodies with specific interests in the legal process. It is therefore appropriate to provide for legal aid administration models in which the main entity administering and coordinating legal aid is impartial and independent and represents the interests of all institutions and organizations involved in the legal aid system. For example, a model where the main decision-making body for the implementation of legal aid is a collegial body composed of representatives of stakeholders (such as the Bar, the Ministry of Justice, the courts, etc.) should be considered as a good practice. High qualification of legal aid providers is one of the most important prerequisites for quality legal aid. Therefore, states should pay sufficient attention to the education and professional development requirements of legal aid providers. The quality of legal aid also depends on sufficient knowledge and experience of legal aid providers therefore, it is appropriate to establish requirements for specialization (e.g. criminal, civil, family cases, etc.). In addition, specific knowledge and skills requirements should apply to lawyers representing clients from vulnerable groups (such as minors, people with disabilities, refugees). Moreover, in order to enhance the capacity of young lawyers to provide legal aid and to make appropriate use of legal aid resources, a balanced division of labor model should be considered, allowing young professionals (such as associates) to provide state-guaranteed legal aid in more simple cases while leaving complicated cases to experienced lawyers. An important precondition for the effectiveness of legal aid is its accessibility to the recipient of the service. Standards for access to legal aid include measures to increase the ease of use of services and the clarity of information. The main tools are the use of electronic services and provision of primary legal aid to receive detailed information on secondary legal aid options. Another important condition for high-quality legal aid is the attractiveness of this task to highly qualified lawyers. Firstly, it is necessary to establish appropriate working conditions for them, fair and proportionate evaluation of the work performed and mechanisms for calculating the workload; secondly, it is important to ensure fair remuneration for legal service providers. Given the limited resources of most states, it is unrealistic to expect lawyers providing legal aid to be remunerated paying the same hourly fee as lawyers in private business. On the other hand, in order to ensure the high quality of legal aid and the fairness of the process, it is important that legal aid providers receive a dignified remuneration that would reflect (as close as possible) to their professional qualifications. It should also be noted that the performed study suggested that remuneration is not so much a factor of quality representation but a factor for choosing to provide legal aid services. Many attorneys strive to provide quality legal aid services, as poor representation would damage a lawyer’s reputation. However, low fees mean that a large proportion of highly qualified lawyers generally refuse to provide legal aid. In order to strengthen the trust in lawyer-client relationship in the context of legal aid, it is important to implement measures that would ensure the client’s ability to choose a lawyer, continuity of representation. It is also appropriate in this respect to ensure the independence of the lawyer from public authorities or other entities. Lawyers providing secondary legal aid should not be employees of the public authority responsible for administering legal aid. In addition, in order to protect the image of a lawyer as an independent service provider, it is recommended to avoid not only formal (for example, when a judge or pre-trial officer is involved in the appointment of a lawyer), but also visual (for example, a lawyer’s office should not be on the same premises as legal aid institution) links of a lawyer providing state-guaranteed legal aid with a state institution. The fourth chapter of the monograph “Assessing the quality of legal aid” deals with the selected issues of legal aid quality assessment. It discusses the assumptions and principles of legal aid quality, forms and tools of quality assessment, reveals their advantages and disadvantages, and provides recommendations for the assessment of relevant legal aid quality measures. Assessing the quality of legal aid is one of the key tools for ensuring the effectiveness of legal aid. Countries apply different mechanisms for evaluating the performance of lawyers in providing legal aid, the most advanced of which is the peer review. It should be noted that a thorough assessment of lawyers’ activities inevitably raises questions as to whether monitoring their activities is not an intervention that violates lawyers’ independence and the confidentiality of the client-lawyer relationship. As to the first issue (lawyers’ independence), at least in most continental law states the principle prohibiting external interference in the activities of lawyers is strictly observed. As to the second issue (confidentiality of the client-lawyer relationship), any detailed individual assessment of a lawyer’s work is inevitably related to the client’s interests and the sensitive information the client provides to the lawyer. In order to ensure the observance of the principles discussed, when designing and/or implementing any evaluation tool that might undermine the lawyers’ independence and/or the confidentiality of the lawyer-client relationship, it is recommended: (i) to assess the national legal framework in terms of protection of the principle of confidentiality and, if necessary, to establish legal mechanisms for protection of confidentiality, enabling evaluation of lawyer’s performance (for example, client consent, Bar’s decision, establishing clear and objective evaluation criteria and mechanisms); (ii)to seek consensus and compromise with the lawyers’ professional associations. Ideally, the decision to implement evaluation measures should be taken and implemented by the lawyers’ professional association itself. Otherwise, the lawyers’ professional association should be on equal footing involved in the process of ensuring and evaluating the quality of legal aid. Such involvement should not be just formal, the lawyers’ professional association should be given decision-making power.