Montenegro

Round Table on the Working version of the first Law on Legal Aid in Montenegro

Podgorica, 17 June 2010

The Ministry of Justice of Montenegro, supported by the United Nations Development Programme (UNDP) Montenegro, Council of Europe and NGO Youth Initiative for Human Rights, organized one in a series of round tables on the Working version of the Law on Legal Aid.  

The aim of the round table was to support the drafting of the final version of the Law, through provision of the expert opinions, remarks, proposals and suggestions on the Working version of the Law on Legal Aid. Public discussions on the Working version of the Law were held in May in Podgorica, Kotor and Bijelo Polje.

The Working version of the Law on Legal Aid on Legal Aid can be downloaded from http://www.pravda.gov.me/ministarstvo
Radna verzija Zakona o besplatnoj pravnoj pomoći može se naći na:  http://www.pravnapomoc.me/

After the introductory speeches the following presentations were given: the Working version of the Law on Legal Aid – Ms. Branka Lakočević, Deputy Minister of Justice in the Government of Montenegro, the opinion of the Council of Europe experts on the Working version of the Law on Legal Aid – Mr.  Ramon Mullerat, Lawyer, former President of the Council of Bars and Law Societies of Europe (CCBE) and Mr. David Gladwell, former Civil Court of Appeals Judge for England and Wales, as well as presentation of the Analysis on gender sensitivity of the Working version of the Law on Legal Aid - Ms. Marijana Pajvančić, Professor of Constitutional Law at the Faculty of Law in Novi Sad.

Working version of the Law on Legal Aid is clear, modern and well-structured document, but it is necessary to determine the financial costs for its implementation – it was evaluated by the experts of the Council of Europe at the round table.

“It is important to undertake calculation of the financial costs of the implementation of the Law and see whether Montenegro will be able to bear them. The Montenegrin government should analyze how much law enforcement will cost, as it can be very expensive and can burden the budget,” said Mr. Gennadiy Kosyak, Representative of the Council of Europe Department for Strengthening Legal Capacities and Human Rights.

Mr. Kosyak estimated that the law should clearly and transparently establish mechanisms for the selection of persons who will be granted the right to provide legal aid, as well as the system of its accountability. “The law should clearly and transparently establish mechanisms for the selection of persons who will be granted the right to provide legal aid and to establish mechanisms for its control, as well as it should establish a system of responsibility of persons providing the service. All of these mechanisms should be clearly incorporated in the text of the Law”, said Mr. Kosyak.

Ms. Branka Lakočević, Deputy Minister of Justice,  said that the Ministry considered that the financial aspect of the Law was sustainable and would not be complicated to implement. She said that analysis of the fiscal impact of the Law has been done in an attempt to determine the assessment of necessary financial resources for the provision of free legal aid. “Ministry of Justice, in cooperation with the Bar Association, will see how many lawyers are willing to apply for providing free legal aid. There is already a list of those who accepted it. Also, a pilot project will be initiated in the Basic Court in Podgorica, in July 2010,  as the first step in the implementation of the Law” Ms. Lakočević explained.

Mr.  Ramon Mullerat, Lawyer, former President of the Council of Bars and Law Societies of Europe (CCBE) said that the Council of Europe was concerned about the cost of the implementation of the Law. “It is therefore important, in cooperation with the Ministry of Finance, to do a study on how much implementation of the law would cost, and whether the judges will be able to bear the additional burden and whether it will be enough lawyers. It is important to provide the services for foreigners, immigrants. It is necessary to provide translation, interpretation, expert testimony, for example, in case of accidents. It all costs, and even before the promulgation of the Law calculations should be performed on whether all that is affordable, and to determine the phases of implementation of the law,” Mr. Mullerat emphasized.
 
Mr. Mullerat estimated that 50 percent of advocacy fees, as provided in the current legal framework, for the lawyers who will provide legal aid, is much less than usual. He asked whether in this way a high quality legal aid will be provided. “In Europe, generally, tariffs have not been well accepted and lawyers define their own prices. This should be taken into account in determining tariffs. Lawyers should be independent, which means that nobody should govern them, neither government nor economic interests. Where lawyers have a problem to live, because their income is insufficient, they are not independent. These questions should be defined in cooperation with the Bar Association and international organizations in this field. The law must have clear and transparent mechanisms for selecting persons who will be entrusted with the provision of free legal aid,” said Mr. Mullerat.

Mr. David Gladwell, former Civil Court of Appeals Judge for England and Wales said that the draft version of the Law did not fully cover the mechanism of selecting people who will be entrusted with the provision of free legal aid. “The Bar Association should elect those who will provide the service. The criteria on which these people should be elected should be clear and transparent,” Mr. Gladwell explained.

Ms. Sanja Bojanić, Democratic Governance Cluster Leader at the UNDP Montenegro stressed that the law was a foundation for establishing of a system that has not existed in Montenegro. “The goal is to enable equal access to justice to those who were not able to pay for legal services,” she said. “The Law and the newly established free legal aid system is another step forward in the process of European integration, because it is one of the requirements along the way, as well as a step forward in the process of accepting and fulfilling the obligations of Montenegro as a member of the UN in the field of legal empowerment of the poor,” Ms. Bojanić concluded.

Mr. Boris Raonić, Programme Director of the NGO Youth Initiative for Human Rights emphasized that the application of the Law should be followed and eventually improved after some time. “The Law is not to be perceived as one of the items that should be adopted within the framework of integration processes in Montenegro, but as one of the key human rights,” said Mr. Raonić.

 

 

Minister of Justice at the Government of Montenegro H. E. Mr. Miraš Radović
said that this Law would contribute to the development and affirmation of the right to a fair trial. According to him, a well organized system of free legal aid will facilitate the equal right of access to justice and equality of citizens before the law. He pointed out that financial weakness is not allowed to overshadow free legal aid. “A well organized system of free legal aid will enable equal right of access to justice, equality before the law and the affirmation of the rule of law in general,” Minister Radović concluded.

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According to the Working version of the Law, the authorities competent to provide free legal aid will be in the basic courts, while authorized persons will be lawyers who will be enrolled in the registry on the basis of public invitation..

Monitoring of its implementation will be done by the Ministry of Justice, while the quality of implementation will be monitored by the President of the Court.

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For the purpose of exercising the right to a fair trial and equal access to the court, individuals who by their wealth status are not able to exercise the right to judicial protection without damage to essential subsistence of themselves and their families should be provided free legal aid pursuant to the appropriate law.

Legal Aid involves the provision of necessary funds to fully or partially cover the costs of legal advice, preparation of pleadings, representation in proceedings before the court, the State Prosecutor's Office and the Constitutional Court of Montenegro and the procedure for out-of-court dispute settlement.

The objectives of the Law on Legal Aid are:
- Passing laws that conform with international standards (EU / UN);
- Establishing systems that will provide access to justice for all;
- Creating networks of legal aid that will suit the needs of users;
- Contribution to the democratization of society and to the EU accession.

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The process of drafting the Law, in addition to UNDP was supported by the Organization for Security and Cooperation and the Office of the Council of Europe.