Justice chancellor: State legal aid fee increase needed to guarantee rights

Chancellor of Justice Ülle Madise.
Chancellor of Justice Ülle Madise. Source: Kairit Leibold / ERR

Chancellor of Justice Ülle Madise says that the current fees paid to lawyers, who provide state legal aid is insufficient. Madise believes the fees should be increased to guarantee reliable and competent legal aid is available for everyone.

In a letter addressed to Minister of Justice Lea Danilson-Järg (Isamaa), Chancellor of Justice Ülle Madise said, that the current fee-based system does not guarantee the protection of suspected criminals' rights, or the right to a fair trial.

Madise said, that insufficient access to reliable legal aid for the less affluent sections of the population is an issue which has persisted for decades, and has still not been systematically resolved.

"The experience of the Chancellor of Justice's Office confirms that the situation for many people remains bleak," said Madise.

"Even with the best will in the world, all too often, there are people who fail to receive the legal advice they need, as well as delays to legal proceedings, because they cannot afford it. This undermines the rule of law as a whole. The situation becomes even more difficult (in cases) when lawyers refuse to provide state legal aid or insist that to do so, it is agreed that it is already too late to defend (the client's) rights," said Madise.

Lawyers often refuse to provide state legal aid because too little money is paid for the work they are expected to do. This was supported by a Supreme Court ruling published on Monday, which found that at current rates, the state's provision of legal aid may be considered unsustainable.

Imbi Juergen, chair of the Estonian Bar Association, told ETV news show "Aktuaalne kaamera," that a number of lawyers left the state legal aid system in September and it is now on the verge of collapse. Juergen said, that the state was trying to buy legal aid at a third of the market price.

Madise said, that given the general levels of prosperity and development of society, reducing the cost of legal aid is not possible, while also adding that current levels of remuneration for lawyers, cannot be considered unreasonably high.

The Chancellor of Justice cited the example of a case in which a lawyer working int the state legal aid system had to examine an extremely voluminous criminal file containing at least 11,000 pages of material, during pre-trial proceedings.

The work took the lawyer 76.5 hours to complete, only nine of which they were compensated by the state. In effect, to complete the work in nine hours, the lawyer would have had to examine 1,222 pages per hour, or less than one page every three seconds.

"For this work, a fee of €486 could be paid. This the amount is not the salary of the individual lawyer, but how much is paid to the law firm, and also has to, for instance, cover rent and utilities among other office costs, as well as the salary of a secretary or assistant," Madise explained.

According to the Chancellor of Justice, it must therefore be assumed that in the future, when it comes to highly labor-intensive cases, finding lawyers willing to provide state legal aid will become impossible. As a result, the current system cannot be said guarantee the right of all individuals to receive a legal defense.

"The fees paid (by the state) for the provision of state legal aid must (be sufficient to) allow lawyers to work long enough and hard enough to ensure that the rights of the person they represent are protected in the best way possible," said Madise.

Under the current system, a lawyer may receive €27 per half-hour for providing state legal aid in pre-trial criminal proceedings, to a maximum of €81 per case. A court, investigative authority or prosecutor's office may, on the basis of a reasoned request by the lawyer, increase the maximum fee for the provision of state legal aid by up to 500 percent, if it is deemed to have been particularly labor-intensive.

In her letter to the justice minister, Madise said, that although the Supreme Court did generally find the rules regarding state legal aid fees to be sufficiently flexible, she considers them insufficient for ensuring that fair and constitutional results can be reached in all legal cases.

"I consider that the rules, which do not allow for a fair fee (to be paid) for the provision of state legal assistance, are unconstitutional. The state must not wait for its legal aid system to collapse," said Madise.

If a person requires legal assistance to protect their fundamental rights, but is unable to pay for it themselves, it must be provided by the state. The assistance provided must be competent and reliable, and is funded using money from the state budget. It is therefore the government's responsibility to ensure that sufficient funds are available to pay for state legal aid when required.

The need for urgent legal advice can arise in a wide variety of circumstances. A person cannot, for example, be taken into custody on suspicion of committing a crime, without the presence of a lawyer. If a lawyer cannot be found to represent someone who is arrested within 48 hours, they must be released, even in cases where there are clear grounds for their detention.

Viljar Peep, deputy secretary general of the Ministry of Justice's Judicial Administration Policy department, told ETV show "Aktuaalne Kaamera" this week, that the ministry was trying to find the funds to alleviate the situation.

Ultimately, the procedure for paying fees to lawyers who provide state legal aid will be set by the justice minister. The decision will be made based on the amount of money allocated from the state budget, the expected volume of state legal aid required, and after hearing the views of the Estonian Bar Association.


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Editor: Michael Cole

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