Montenegro

Montenegro’s legal aid reforms will avoid shortcomings evident in more prosperous countries

If it can be accepted that the purpose of law is to limit or prevent injustice and conflict, it follows that all individuals living in societies that subscribe to the rule of law must have equal rights under the law. Legislating equal rights is a simple process but safeguarding and ensuring those rights is a much more difficult task. Justice for all is becoming more of a dream and less of a reality in many parts of our world of ‘haves’ and ‘have nots’.

Law is a very complex field. Unlike plumbing, automobile mechanics, carpentry etc., it is not advisable to practice law without formal education and training. Unfortunately, there is a disturbing trend, at least in countries that practice common law such as the United States, Australia, Great Britain and Canada, toward individuals deciding to represent themselves in court. This is largely, but not solely, because the rates charged by lawyers are beyond the financial means of a growing percentage of the population. Many individuals involved in legal disputes are finding, more and more, that their only chance to access justice lies in self representation. The waves of self representing litigants who are taking the law into their own hands are causing a lot trouble for judiciaries.

Many legal practitioners and judicial administrators have, for some time now, been pondering how to ensure that justice is done when an individual who is largely ignorant of the complexities of law is matched against a professional lawyer in a courtroom. In a 2003 report, the CEO of Australia’s Family Court, Richard Foster, called self representing litigants a, “permanent (emphasis added), significant and growing user group.” So drastic are the problems created by self representing litigants that, in his search for solutions, Foster went so far as to call into question the very nature of the common law judicial process by, “examining the less adversarial approaches applied throughout Continental Europe.” In a 2007 guidebook for California judicial officers, one judge succinctly summed up the problem by writing, “I am handling a case where the parties really need an attorney to help them out. They keep coming to court, and I keep telling them that they need a lawyer. I finally realized that the only way they’ll be able to get a lawyer is if I come up with the $5,000 retainer.”

As numerous affluent countries grapple with extensive and expensive reform measures and programs to solve the myriad problems posed by poor people seeking justice in their courts, the tiny Balkan republic of Montenegro is attempting to prevent such problems before they materialize.

One of the few advantages afforded to those charged with the massive reformation of Montenegro’s legal system is the ability to learn from the mistakes of others. The country’s leaders and those who advise them understand that they must avoid erecting the substantial barriers to justice that indigent individuals face. A sufficiently funded and properly administered legal aid program which provides professional legal representation to impecunious litigants is, of course, the answer.

Article 21 of Montenegro’s constitution addresses legal aid, “Everyone shall have the right to legal aid. Legal aid shall be provided by the Bar, as an independent and autonomous profession, and by other services. Legal aid may be provided free of charge, in accordance with the law.” By enshrining a citizen’s right to legal aid in the country’s supreme law, Montenegro has acknowledged existing and potential problems. Now, the task at hand is to solve those problems by building a legal aid system that is in accordance with the wishes of the people of Montenegro as expressed in the constitution. The United Nations Development Programme (UNDP) is playing a crucial role in that effort.

Responding to an invitation from the Montenegrin Ministry of Justice, UNDP decided to support the effort to establish an effective legal aid system. From UNDP’s point of view, the main reasons for interventions are as follows:

• an urgent need for a new legal framework in this area
• inadequate capacity of the Ministry of Justice to take the appropriate role in the reform of the current system of legal aid
• a lack of capacities to implement the reform process once the law is adopted and to carry out the numerous activities that will follow
• a need for training of staff dealing with legal aid
• UNDP’s overall support to promote the core UN values as expressed in the Millennium Development Goals (MDG’s) related to the eradication of extreme poverty and hunger and promotion of gender equality and empowerment of women

 

Accused criminals are accorded professional legal representation by the state but UNDP Montenegro describes the country’s current legal aid system for non criminal matters as a, “mixed bag of uncoordinated providers and services, ranging from municipal legal aid offices to one non-governmental actor based in the capital.” UNDP’s analysis continues by stating:

“The Law on Municipal Self Governance, which establishes the provision of this limited assistance, does not oblige the municipal authorities to execute and deliver these services. Instead, legal aid is provided by other, already-existing municipal services. Hence, the quality and effectiveness of these services are completely variable and in some municipalities lacking altogether. In municipalities where legal aid services are operating (such as Podgorica), there have been serious deficiencies recorded in the delivery of such.”

UNDP Montenegro commends the Swedish Helsinki Committee funded NGO Legal Aid Centre (LAC) for its efforts to provide quality legal aid to Montenegrins since 2004 but laments that the organization, “can only offer ad hoc legal services to those who live in or can travel to Podgorica,” and points out that the centre, “has limited resources available and offers aid only for limited cases.” The system falls woefully short of European Union (EU) standards and must be overhauled if Montenegro’s desire to join the bloc is to be realized.  

Reforming Montenegro’s legal aid system is a multi step process that began in 2006 when the Ministry of Justice organized a conference to raise awareness about the importance of establishing a comprehensive legal aid system. In January 2009 a working group - consisting of representatives of the Ministry of Justice, the Supreme Court, the Bar Association, the Judicial Council and Montenegro’s delegate to the European Court of Human Rights, was struck. That working group is now giving consideration to a draft law on legal aid that was prepared by a consultant. Experts from various international NGOs will also appraise the draft law. It is hoped that a public consultation process will be conducted during the summer of 2009 and that Parliament will have a draft law for its consideration by September. The effort is moving forward fluidly thanks, in great part, to generous donor support.

By the time a new Law on Legal Aid has been passed by the Montenegrin Parliament, UNDP will have already contemplated and developed various models for the new legal aid system based on best practices from EU countries. One of the primary concerns of legal aid reformers is the potentially substantial expenditure the state will have to absorb in order to implement a properly functioning legal aid system. According to government statistics, the average monthly salary in Montenegro in 2008 was 338 euros and the unemployment rate was 12%. The fee for preparing and filing a simple legal motion charged by a lawyer can range from 75 to 225 euros. The amount of money needed to provide justice for all in a poor country like Montenegro could be burdensome to the government’s budget and those engaged in the reformation of the legal aid system are very cognizant of that fact.

OSCE will conduct financial analyses of possible models for the system and care will be taken to assure that Montenegro does not find itself in the position that Slovenia finds itself in at present. When Slovenia, the first Balkan country to become a member of the EU, reformed its legal aid system it did not anticipate the large number of applicants who have come forward. The resulting drain on the Slovenian government’s financial resources has necessitated a reevaluation of the system. Bearing in mind the Slovenian situation, Montenegrin citizens applying for legal aid may have to pay a percentage of the expenses incurred in their legal representation, depending on their income and assets.

While framing proposed models for a new legal aid system, UNDP is taking care to assure that the country’s most economically challenged are not passed over. Within Montenegro’s patriarchal social paradigm, property is traditionally bequeathed to the first born male in a family. The unemployment rate of Montenegrin women is higher than it is for their male counterparts and Montenegrin women in the workplace earn significantly less than men do. Currently, a woman’s access to justice in Montenegro is not just limited – it may be non-existent. But that sad state of affairs will change. The United Nations High Commissioner on Rights UNHCR will provide assistance regarding access to justice for refugees and displaced persons.

All parties involved in the reformation of the Montenegrin legal aid system are completely aware of the importance of their work. By the time a new legal aid system is ready for handing over to the government it will be crafted to avoid the shortcomings that are so obvious within the legal aid systems of far more prosperous nations.