Top court: Underfunding legal aid may risk protection of fundamental rights

The renovated Supreme Court of Estonia in Tartu.
The renovated Supreme Court of Estonia in Tartu. Source: Silver Gutmann/Supreme Court of Estonia

In a ruling issued Monday, the Supreme Court of Estonia found that at current fee rates, the offering of state legal aid may not be sustainable, and the protection of the fundamental rights of those in need of legal aid may be jeopardized.

The Constitutional Review Chamber of the Supreme Court noted that if professional legal aid is necessary for the protection of an individual's fundamental rights and they themselves lack the funding to pay for it, legal aid must be provided by the state, Supreme Court spokesperson Arno Põder said Monday.

Both the Constitution of Estonia and European law require first and foremost those suspected and accused of committing a crime be ensured legal aid, and it is clear that state legal aid fee rates are directly related to ensuring the right of defense. If someone does not receive sufficient aid due to the state legal aid model and fee rates currently in force, this may constitute a violation of the fundamental right of defense.

The Supreme Court found that should the number of lawyers providing state legal aid decline to a critically low level as a result of shortcomings in and the underfunding of the current model, questions may arise, in addition to the matter of the violation of the rights of legal aid recipients, regarding the sustainability of the current system more broadly.

The board of the Estonian Bar Association is under legal obligation to ensure the uninterrupted provision of and access to state legal aid, however if they cannot manage to find lawyers interested in providing state legal aid under current conditions, the legality of such an obligation may be called into question.

The chamber nonetheless noted that the Supreme Court cannot start creating, in lieu of the legislature, a more sustainable state legal aid system. It is exclusively up to the Riigikogu to decide whether the lawyer shortage should be relieved by raising fees, by abolishing the fee cap and granting the body conducting proceedings the right to determine fair remuneration on a case-by-case basis or by some other means.


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Editor: Aili Vahtla

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