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Content updated: 21-05-2019 13:02

The provision of the Law on State-Guaranteed Legal Aid limiting access to secondary legal aid in criminal proceedings declared unconstitutional

11-10-2018

By its ruling passed today, the Constitutional Court has recognised that Item 11 of Paragraph 7 of Article 11 of the Law on State-Guaranteed Legal Aid (hereinafter referred to as the Law) is in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, insofar as, under the legal regulation laid down in this item, an applicant is not provided with secondary legal aid if such aid was provided to him/her in other proceedings and he/she failed to pay the established costs of this aid in full or in part until the specified deadline in those cases where access to such aid is extremely difficult due to financial reasons and it is necessary to ensure this legal aid in criminal proceedings in the interests of justice.

The Constitutional Court held that the Constitution, among other things, the right of a person to apply to a court, as consolidated in Paragraph 1 of Article 30 thereof, and the imperative of a fair hearing of a case by an independent and impartial court, as guaranteed in Paragraph 2 of Article 31 thereof, and the constitutional principle of a state under the rule of law imply the duty for the state to ensure, under the procedure and conditions established by law and taking account of the financial capacities of the state, the provision of effective legal aid, among other things, legal advice and legal representation services, to those socially sensitive (vulnerable) persons to whom, in the general market of legal services, such legal aid would otherwise be fictitious or its access would be extremely difficult due to financial reasons, as well as in other cases where this is necessary in the interests of justice. Regulating legal aid (public legal service) that is financed from state budget funds or other public funds and is ensured by special institutional and organisational means, the legislature has broad discretion to choose a model of organising, providing, and funding this legal aid, as well as to establish the subjects administrating and directly providing this legal aid (service), the forms of their activity, and the grounds for remunerating them. The constitutional duty of the state to ensure the provision of legal aid (public legal service) under the procedure and conditions established by law also means the obligation to responsibly plan, accumulate, and use the funds needed for such legal aid, as well as the obligation to regulate remuneration for the provision of this service, among other things, on the grounds of the professional activity of lawyers, so that financial resources would be used rationally and distributed in an even manner, such legal aid would be accessible to everyone to whom it is necessary, and speedy legal proceedings and choosing the most effective means and measures of the defence of rights would be encouraged.

The right to an advocate, as consolidated in Paragraph 6 of Article 31 of the Constitution, means that a person has the right to choose an advocate, as well as the right to have an advocate appointed by the state. The constitutional right to defence and the right to have an advocate give rise to the duty of the state institutions to ensure real possibilities for the implementation of these rights.

The Constitutional Court noted in the ruling that the duty of the state to ensure the provision of effective legal aid in those cases where this is necessary in the interests of justice, among other things, means that the legislature must provide for such a model of organising, providing, and funding legal aid under which persons to whom access to such aid would be extremely difficult due to financial reasons would be provided with legal aid on the basis of such criteria as the complexity of the case or applicable law, the severity of the possible punishment, the gravity of the criminal act, certain particularities of the social and personal situation, and other significant circumstances. The obligation to responsibly plan, accumulate, and use the necessary funds, as implied by the constitutional duty of the state to ensure the effective provision of legal aid, also gives rise to the right of the legislature to establish such a model of organising, providing, and funding legal aid under which it would be required that, upon the termination of the legal proceedings, the person would pay, in full or in part, the costs of the publicly funded legal aid provided to him/her if his/her financial situation improved and he/she were able to pay them. Thus, the legislature may also establish such a legal regulation under which legal aid in certain cases would not be provided to persons who do not fulfil the duty established in the law to pay, in full or in part, the costs of the legal aid provided to them in other proceedings. However, such a legal regulation may not, in any case, deny the right of the person to apply to a court and the right to due process of law, which are consolidated in Paragraph 1 of Article 30 and Paragraph 2 of Article 31 of the Constitution, i.e. no preconditions may be created for disregarding the interests of justice, among other things, where access to legal aid would be particularly difficult for a certain person due to financial reasons.

The Constitutional Court noted that Item 11 of Paragraph 7 of Article 11 of the Law laid down the grounds for refusing to provide secondary legal aid – where the participation of a defence counsel or an authorised representative in criminal proceedings was not necessary under the Code of Criminal Procedure, secondary legal aid in criminal proceedings was not provided if such aid had been provided to the applicant in other proceedings and he/she failed to pay the established costs of this aid in full or in part until the specified deadline.

Thus, under the impugned legal regulation, with the exception of the cases provided for in the Code of Criminal Procedure where the participation of a defence counsel or an authorised representative in criminal proceedings was necessary, secondary legal aid was not provided to a person irrespective of any circumstances, i.e. irrespective of the property or income of the person or the interests of justice, among other things, the complexity of the case or applicable law, the severity of the possible punishment, the gravity of the criminal act, and certain particularities of the social and personal situation of the person.

Consequently, this legal regulation disregarded the Constitution, among other things, the right of a person to apply to a court, as established in Paragraph 1 of Article 30 thereof, the imperative of a fair hearing of a case by an independent and impartial court, as guaranteed in Paragraph 2 of Article 31 thereof, also the duty of the state, as implied by the constitutional principle of a state under the rule of law, to ensure the provision of effective legal aid to persons to whom access to legal aid would be particularly difficult due to financial reasons in those cases where this is necessary in the interests of justice; this legal regulation also disregarded the duty stemming from the constitutional right to defence and the constitutional right to an advocate, as consolidated in Paragraph 6 of Article 31 of the Constitution, for the state institutions to ensure that the possibility for implementing these rights would be real.

In view of the above-mentioned arguments, the Constitutional Court held that Item 11 of Paragraph 7 of Article 11 of the Law, to the specified extent, was in conflict with Paragraph 1 of Article 30 and Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

The Constitutional Court drew attention to the fact that, on 30 June 2018, the Seimas amended Article 11 of the Law. According to the amended legal regulation, if the State-Guaranteed Legal Aid Service (hereinafter referred to as the Service) refuses to provide secondary legal aid (among other things, pursuant to Item 11 of Paragraph 7 of Article 11 of the Law), the applicant will be able to apply to this Service with a reasoned written request concerning the additional assessment of his/her individual situation, and the Service, having assessed his/her individual situation (the standard of living and financial situation, the possibilities of effectively representing himself/herself, the costs for the assistance of a lawyer, the complexity of the case in which secondary legal aid is requested, the amount of pecuniary claims (pecuniary interests), the procedural situation of the applicant in the case, and the possible negative consequences for the applicant), will have the right in exceptional cases to provide secondary legal aid to the applicant, irrespective of the fact that such aid was provided to him/her in other proceedings and he/she failed to pay the established costs of this aid in full or in part until the specified deadline. This amendment will come into force on 1 January 2019 and will apply to applications submitted as from that day for the provision of secondary legal aid.

The full text of this ruling of the Constitutional Court can be found on the website of the Constitutional Court at http://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1869/content.