Free legal aid, effects and progress over the years
“Everyone is equal before the law”, is a principle expressed in Article 18 of the Constitution of the Republic of Albania and one of the fundamental human rights.
To guarantee equality before the law and access to the justice system, in 2008 was implemented law no. 10039 “On legal aid“. This law has long been replaced by a new law, but it is worth analyzing its progressive aspect and problems. The purpose of this law was to provide legal aid to citizens with financial difficulties, such as counseling, completion of legal acts, free representation, etc. The responsible institution for providing legal aid services was the State Commission for Legal Aid (hereinafter referred to as the “Commission”). But how well-functioning was this body and how effective was the old law on legal aid?
We find some answers in the case law, in the way the courts have approached the law in the light of the circumstances and facts of concrete cases. In this context, for illustration, we refer to the jurisprudence of the ECHR as an example of constant and consolidated practice on fundamental human rights and freedoms. In the case Laci v Albania, the trial of 19.10.2021. the ECtHR ruled that the domestic court had failed to assess eligibility for the stamp duty exemption, thus undermining the essence of the right of access to court: therefore it found a violation of Article 6/1 of the ECHR.
According to the facts of the case, in February 2011, Laci (applicant) together with 70 other persons filed a lawsuit against the Ministry of Defense for compensation of property and non-property damage for the loss of life of their family members during the Gerdec explosion.
The applicant paid the claim fee to the District Court of Tirana of 12,000 ALL. The court declared incompetence and referred the case to the Administrative Court where another lawsuit fee had to be paid as the amount for compensation was claimed to be 228,000 Euros and the lawsuit fee 3% of that amount, specifically 6840 Euros.
The applicant at the time was unemployed and receiving financial assistance in the amount of 57 Euros. In these circumstances, he applied for legal aid to be exempted from the obligation to pay the tax. His request remained unanswered by the Commission.
The Commission, according to the law of the time, had the right to refuse to provide the applicant with legal aid, but its decision had to be reasoned and it could be appealed.
The ECHR ruled in favor of the applicant after finding a violation of Article 6 of the ECHR, which stated, inter alia, that the Commission was not functioning properly, a finding constantly reported by reporting bodies of the Council of Europe. The report of the Council of Europe expressed concern about the fact that the Commission had not given anyone the opportunity to be exempted from the obligation to pay the tax. The Court also argued that there had been a small number of applications for legal aid from the citizens.
Currently, part of our internal legal system is a newer law “On legal aid guaranteed by the state“, no. 111/2017. This law seems to have brought major changes and reformed the aid delivery process. According to the report of the Directorate of Free Legal Aid, for the period January-August 2021, 5354 cases were handled, of which 1742 were handled through the online platform.
Legal aid consists of primary legal aid, secondary legal aid, exemption from the payment of court fees and court costs, and exemption from the obligation to prepay the fee for the execution order.
The implementing body is the Directorate of Free Legal Aid, a legal entity under the Ministry of Justice which cooperates with the National Chamber of Advocates. Primary legal aid is provided by specially trained employees, authorized non-profit organizations, and legal clinics at higher education institutions.
The new law expanded the category of eligible persons to receive legal aid by including not only citizens with economic disadvantages but also other categories in need.
Requests for primary legal aid can be oral or written and the aid is provided immediately after the citizen signs a self-declaration that he meets the criteria set out in the law. The request for secondary legal aid for a free lawyer and the requests for exemption from the payment of court fees and court costs are submitted to the court, which examines whether the criteria are met and must respond within a time limit set by law.
The new law on state-guaranteed legal aid has brought new guarantees on the right of access to court and equality before the law for all citizens. The old law paved the way for guaranteeing these rights, but new laws and institutions are necessary to resolve existing problems, hence cases like Laci v Albania do not repeat and find quick and efficient solutions before our national bodies and courts.