Wednesday, 25 December 2013

Non-governmental Organisations – Free Legal Aid Providers Strongly Criticise the Draft Law on Free Legal Aid

If this Draft Law on Free Legal Aid, third in a row, is adopted, it will lead to a situation where rare individuals will meet the requirements for free legal representation, and even if they do meet the requirements, there will not be no providers of such aid. Due to the provisions regulating the work of future free legal aid providers, and envisaged fines of up to one million dinars, there will hardly be interested lawyers, legal clinics or NGOs willing to provide this type of assistance to citizens under the proposed conditions.

The Draft Law on Free Legal Aid has several key shortcomings: disputable definition of free legal aid beneficiaries and complicated procedure that must be conducted to be eligible for free legal aid, election of social welfare centre as an administration body that decides on requests for free legal aid and penal provisions that represent a threat to all those who so far have provided pro bono legal assistance, and which will not be financed from the budget of the Republic of Serbia according to the new Law.

It is, therefore, expected from the poorest and socially disadvantaged citizens to know whether they have the right to free legal aid under this Law, and then, in accordance with the Constitution, to state which of their rights or freedoms has been violated and to fill a form stating all that?!

Filling out the form will be a problem also for people with disabilities and those who have been forcibly hospitalised or against whom a procedure for deprivation of legal capacity is being conducted.

The Draft Law also stipulates that potential beneficiaries should submit a request for free legal aid to the competent Social Welfare Centre, which shall, within 7 days or 48 hours in urgent cases, adopt a decision on granting or rejecting the request.

Social Welfare Centres are already overloaded with work, and everybody who is familiar with that situation knows well that the centres will not be able to meet the prescribed deadlines and to assess the fulfilment of requirements for providing this aid. In deciding on eligibility for free legal aid, Social Welfare Centres have often been in conflict of interest with respect to potential beneficiaries of free legal aid.

The Draft Law provides for the registration of all providers, stipulating that the state will not pay for primary legal aid (providing legal advice, drafting complaints and submissions). This does not include local self-governments, which are obliged to ensure the exercise of this right by using their own funds.

As regards the providers of secondary free legal aid (in-court representation and mediation), the Draft Law stipulates that the state will fund this type of aid when in the procedure it has been decided in favour of the beneficiary and when the court has made a decision on reimbursement of provided free legal aid at the expense of other party. Therefore, the work of attorneys-at-law will be paid only if these two conditions have been fulfilled.

The penal provisions of this Draft Law will certainly lead to a reduction in the already small number of free legal aid providers in Serbia, because why would anyone take a risk of providing this type of assistance even pro bono if they are threatened with draconian fines of up to one million dinars.

Non-governmental organisations that provide free legal aid to the citizens of Serbia publicly express their concern that the proposed provisions of this Law will certainly affect the autonomy of the associations of citizens, seriously undermining the future system of free legal aid providers.

Because of all the above, the Law should be urgently returned to refinement. As it is now, it will cause more harm than good!

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