Working group members
The 2nd retreat was particularly useful for the accomplishment of the objectives of the MDTF JSS regarding the establishment of the FLA system in Serbia. Discussions that took place during these days revealed a number of issues that must be addressed in order to develop a sustainable FLA system on the basis of this law.
The participants have initially split into two groups in order to separately discuss the remaining issues and prepare for the whole group discussion. The remaining issues in the draft law included: Management and administration of the system; Quality control; Audit/supervision; Financing the system; Foreign element disputes; Penal provisions. Nevertheless, due to the interconnectedness of the matters to be discussed, it was later decided to work in the full WG format. This approach allowed for the discussion on the main inconsistencies regarding the overall organization of the FLA system. A number of WG members expressed different opinions and supported completely different ideas. This created a fertile ground for a more in-depth discussion as to what kind of system we are planning to establish and what kind of resources we will be able to use in that regard. The opposite opinions have all been noted in the report, as well as the variety of suggestions regarding the structure, state bodies and their total number, etc. The Netherlands experience was taken into account as a model that could be adopted in Serbia as well. Moreover, a power point presentation was performed regarding the recent debate of the NGO Praxis that addressed the issue of legally invisible persons and Roma population, as these individuals are expected to be the future FLA beneficiaries, so their numbers must be taken into account. It was considered appropriate to inform the WG members that there is a significant number of individuals who are not included in the legal system and represent one of the most vulnerable groups lacking access to justice. Finally, a small group of WG members discussed and prepared several provisions of the FLA Draft law regarding mandatory defense in criminal matters and the cases where there is no mandatory defense but require FLA provision.
The WG discussed in the full format each of the aforementioned issues. One of the major concerns appeared to be the remaining disagreement on the FLA providers. Also, the major problem in determining the providers refers to the CPC Art 85 which basically prevents the WG to utilise the Strategy for FLA adopted by the Government of Serbia that supports the utilization of all available resources in determining the providers. In this context, particularly useful was the presentation on mediators as a potential provider group, that included additional number of specific cases where legal aid can be provided (antidiscrimination cases, commissioner for information etc.), which would allow increased efficiency of the legal aid system and overcome the obstacles introduced by the Art 85 CPC. In line with this, the participants discussed all the available potentials, the ability of the State budget to provide resources that support effective FLA system, and related issues. Several key issues have also been addressed, such as the method of appointing the members of the future national legal aid body. The institutions that will propose these members were discussed, as well as the role of the MoJ in its functioning. As it appears, there are significantly different opinions as to whether this body can be established as an independent body by this Law and how this independence shall be ensured. All the opponent opinions have been entered into the records. Likewise, all the suggestions regarding potential instruments or procedures that could potentially be implemented are included in the records and will be subsequently discussed until an agreement is reached.
The discussion on all the aforementioned issues was continued, with a particular emphasis on the mechanism of control that should be developed. In that sense, the control mechanisms of the Bar Association were discussed and obviously indicate disagreements among the WG members as to who should be performing the evaluation (in terms of client-attorney confidentiality; independence of the Bar, etc.). Additionally, the methods of supervising other LA providers were addressed, with a variety of suggestions indicating the need to enable internal control in order to ensure greater quality of the services. Overall, the 2nd retreat was very successful, as it revealed a number of inconsistent views of the WGM that must be addressed in order to finalize the Draft law. In this regard, additional relevant information will be provided to all the WGM by the WB Consultants in order to reconsider several key options. Finally, we have agreed to conduct a separate meeting after the retreat, among several WG members who will prepare a proposal on the future FLA providers for consideration of all the WGM. The overall benefit of this experience refers to the emphasis on a number of controversial issues and inconsistent viewpoints among the WGM. In line with this, it appears that the group is aware of the practical implications related to the establishment of the innovative FLA system in Serbia and that there are many problems that still need to be addressed. In terms of the importance of this retreat for the MDTF JSS objectives, it could be stated that it was one of the key meetings of the WGM so far.