Calendar Updated: December 13, 2011
MDTF Activities > Public debate draft law on free legal aid - December 12th 2011

Public debate draft law on free legal aid - December 12th 2011

The Public Debate was organized to inform a broader group of relevant actors in the field of legal aid about the main concepts and issues related to the new Draft Law on FLA and the new FLA system to be established. The participants involved a variety of civil society organizations, municipality representatives across Serbia, Bar Associations’ representatives, international organizations and Law Universities. Overall, around 120 participants were present at the debate. The opening word was performed by the State Secretary Gordana Pualić, who addressed the process of establishing an effective free legal aid system in the Republic of Serbia. She also described the legal framework for drafting the law and highlighted previous internatinally supported projects in this regard. Following the brief speach by the president of the working group, Assistan Minister Vojkan Simic, the World Bank representative Mr John Furnari made a brief speach on the work of the working group and the importance of establishing a sustainable FLA system in Serbia. The debate further involved the presentations of the specific parts of the Draft Law on FLA where each topic was presented by the WG members. The first presentation was performed by Mr. Simic, including the general overview of the Law, the organization and financing of the FLA system, the main inconsistencies within the working group and the legal documents used as the basis for law drafting. He also mentioned the value of the study visit to the Netherlands, referring to the important experiences the WG was able to gain in terms of practical functioning of an effective FLA system and adequate quality control. The presented topics involved the FLA beneficiaries, relevant criteria for exercising the right to FLA; the providers and key inconsistencies in this regard; the procedures. Next, the suggested methods for quality control were presented, as well as the role of NGOs and legal clinics as potential providers and the role of mediation as a form of free legal aid. Mr Peter Biggelaar, Director of the Netherlands FLA Board, discussed the main concepts in the Draft Law and provided valuable comments regarding specific aspects of the Serbian law in the context of the Netherlasnds experience. Prof. Dr. Alan Uzelac, from the Law University in Zagreb and the COE expert, presented the initial evaluation of the Draft Law and pointed out the main obstacles to the effectiveness of the system. He compared the Serbian Draft Law with similar Croation experience, indicating potential administrative problems and financial issues. Concurrently, he noted that the working group succesfully managed to avoid certain mistakes previously adopted in Croatia. Furthermore, he also compared the standpoint of the Croatian Constitutional Court regarding the Article 27 of the Croatian Constitution, in contrast with the Serbian Constitutional Court's decision stating that the Croatian Constitution is more strict than the Serbian Constitution, but the interpretation allows for a broad group of FLA providers, providing the possibility to establish a more effective and sustainable free legal aid system. Following these explanations of the provisions of the law per specific topic, the discussion was open to all the participants. Among the first comments, Prof Lilic, Law University of Belgrade, noted that he believes the definitions of the primary and secondary legal aid and initial advice should be formulated better; that NGOs and legal clinics should be included in the system, as there is a possibility for the FLA law to go further than Art 85 CPC, particularly as it represents lex specialis in regards to the Serbian Constitution Art 67. He also suggested the inclusion of the group as a user and questioned the reasons of placing the pro bono legal aid provision out of the system. In the opinion of Mr. Saša Gajin, representative of the Center for Improvement of Legal Studies (CUPS NGO), due to the short period of time for detailed analysis of the Draft Law on Free Legal Aid and the lack of representation of NGOs in the process of drafting the FLA Law (even though the WG has one NGO representative), the group of NGOs reserved the right to submit their comments by the end of December. He also suggesested taking into consideration the judgements of the European Court for Human Rights, regarding the compensation in case of poor quality of free legal aid provision. The representative of the Zvezdara Municipality presented the work of their institution and the variety of legal aid services provided, expressing the potential problems related to the Art 85 CPC that may appear in the future. Mr. Ratko Bubalo from the Humanitarian Center for Integration and Tolerance (HCIT NGO, Novi Sad), experienced in providing free legal aid to refuges from Croatia and Krajina, IDPs and asylum seekers, pointed out that model with Referral for Legal Aid Provision shall slow down the process of exercising beneficiary’s right to free legal aid. He also addressed the issue of complexity of the application form and stated that the aforementioned groups mainly require legal aid regarding administrative issues. The representative of Praxis NGO, Mr. Danilo Ćurčić, stated that the group of NGOs will submit an initiative for assessing the constitutionality of the Art 85 CPC. The UNICEF representative supported further inclusion of children as FLA beneficiaries, referring to the Art 37 and 12 of the Convention, suggesting the reformulation of the Draft provision to include ‘every child’. In opinion of Mrs. Vanja Macanović from the Autonomous Women Center, all children should be entitled to FLA right and Centres for Social Welfare should be included in the FLA system. She supported the consideration of the attorney’s specialization in determining the specific legal aid provider. The YUCOM Director Mr. Antonijevic provided a series of positive comments on the Draft, suggesting that the circle of the providers should be determined in a more broad manner (include NGOs and legal clinics), that the case when NGOs engage lawyers should be better defined, the strategic cases should be led by organizations and that the issue of financial resources still remains unclear. He also stressed out that the scope of human rights to be protected should be broader and Special Requirements and Evidences for Entry into the Registry of the associations and other forms of organization and legal clinics should be adjusted. His organization will submit additional comments in due course. Finally, he supported that free legal aid represents a common social task. Mr. Davor Rako, UNHCR, added that the Republic of Serbia should take over from UNHCR financing NGOs which provide free legal aid to certain categories of persons. He envisaged that beneficiary of the right to legal aid should be any person who is under the jurisdiction of the Republic of Serbia, having in mind the great number of people in our country at risk of statelessness, thousands of Roma without ID number and address, Egyptians, Ashkali, so called “invisible persons”. Mr. Zoran Lončar, representative of Belgrade Bar Association believes that the state should rely on existing Bar Associations and FLA departments in municipalities. He stated that the Draft Law is good in general, but he disagrees with the inclusion of NGOs and legal clinics in the group of providers, since, in his opinion, legal clinics are useful for education of students, but they are not providing privacy for the client or liability for error, which is implied for NGOs as well. He suggested that the objective of the Law could be confusing and interpreted differently, thus, should be formulated more clearly. Procedural provisions should be adjusted. He is expecting a number of bylaws to be adopted in order to determine certain issues in more detail. Moreover, he opposed the quality control by the state, stating that advocacy has no public authority and therefore cannon be controlled or sanctioned by the state. In this context, he posed a question whether an attorney can refuse representing a client even though there is a decision. The Bar Association is the only one in charge to control the work and impose a fine to a lawyer. Finally, if the legislation seeks to protect the party, FLA Law should anticipate the possibility of hold-up in deadlines for the party entitled to free legal aid. In regards to the final provisions, he stated that the Law should be implemented staring from the day it comes into force and that this should not be delayed. The overall conclusion following the public debate is that the public comments included a valuable variety of uncontroversial, technical recommendations that will improve the law. The constructiveness of the comments also suggest that the Working Group was successful in capturing the policy targets within the FLA Strategy, and that the "alternatives" offered in the Draft allowed for effective public discussion on the key controversial issues as the secondary FLA providers, the establishment of an independent decision making body and the obligation of the government to ensure quality control. All relevant parties have been invited to submit their comments on the Draft Law by the end of December.