DRAFT LAW ON FREE LEGAL AID
I. GENERAL PROVISIONS
Subject of the Law
Art. 1
This Law shall regulate the notion, types and forms of free legal aid, basic principles of the functioning of free legal aid system, providers and beneficiaries of free legal aid, the Registry of free legal aid providers, the procedure for exercising the right to free legal aid, the funding of the free legal aid system, legal aid in cross-border disputes, quality control of the rendered free legal aid, supervision over the implementation of this Law, and misdemeanour liability for breaching the legal provisions.
Objective of the Law
Art. 2
The objective of this Law shall be to provide each citizen the right to an effective and equal access to justice, to ensure the rule of law and equality of citizens in the proceedings before the court and the bodies of state administration, territorial autonomy and local self-government and constitutional court, before which individual rights, responsibilities and interests are exercised or protected.
Terms and Definitions in the Law
Art. 3
Particular terms used in this Law have the following meanings:
- "general legal information" is a general information on the regulation of the particular area of law, i.e. general instructions on the competent subjects and the manner of bringing a decision on a specific right, obligation, or interest based on the law in the proceedings before court, administrative body, or other public authority body;
- "initial legal advice" is a general information relating to the legal status of the free legal aid beneficiary, and the legal regulations pertaining to a particular legal matter, the reason for initiating the proceedings, the course of the proceedings, rules and the cost of the proceedings, the manner of peaceful settlement of a dispute, the manner of enforcement of the decision and the exercise of the right to free legal aid;
- "legal advice" represents a detailed explanation on the manner and possibilities of settling a legal issue in the particular legal matter pertaining to a specific right, obligation, or interest based on the law of the free legal aid beneficiary, except when it comes to the explanation of court proceedings, the proceedings before the constitutional court, and the second instance administrative proceedings;
- "drafting legal documents" is completion of various forms and drafting motions in the first instance administrative proceedings;
- "drafting motions" represents the drafting of legal acts to initiate proceedings or to be submitted in a particular phase of proceedings in which a decision on a specific right, obligation, or interest based on law is to be brought, and especially the drafting of legal actions, requests, proposals, petitions, complaint, appeal, objection, regular legal remedies, as well as the constitutional appeal, in the court proceedings, the proceedings before the constitutional court, and the second instance administrative proceedings;
-"representation" is any legal action that a representative undertakes, upon the given power of lawyer, in the name and for the account of the free legal aid beneficiary in the proceedings of deciding on beneficiary's right, obligation, or interest based on law, especially drafting legal documents and motions, legal counselling, as well as initiating or proposing initiation of certain procedural actions during hearings, in the court proceedings, the proceedings before the constitutional court, and the second instance administrative proceedings;
- "defence" is representation of the accused in the criminal proceedings;
- "implementation of mediation procedure" represents any action which is undertaken by a mediator, in line with the law regulating mediation, in the procedure of a peaceful dispute settlement;
- "legal aid applicant” is any person who has submitted to a competent body a request for the exercise of the right to free legal aid (hereinafter referred to as: Applicant);
- "legal aid beneficiary” is any individual who exercises the right to free legal aid, in line with this Law (hereinafter referred to as: Beneficiary);
- "legal aid provider" is a person who is authorised, based on this Law, to provide free legal aid service, and especially lawyer, free legal aid service established within a local self-government unit, public notary, mediator, an association, a legal clinic (hereinafter referred to as: Provider)
- "public authority body" is a state body, the Autonomous Province's and local self-government's body, as well as an organization entrusted with implementation of public authority.
The terms used in this law for individuals in the masculine gender include the same terms in the feminine gender.
The Right to Free Legal Aid
Art. 4.
The Right to Free Legal Aid, in terms of this law, is the right to legal aid exercised by the beneficiary free of charge, in line with the provisions of this law.
Provisions of this Law shall be applied only in the cases in which beneficiary has not used the right to free legal aid based on the provisions of other laws.
Basic Principles of the Functioning of the Free Legal Aid System
Art. 5
The Free Legal Aid System established by this Law shall be based on the following principles:
- Equal accessibility to the right to free legal aid services, with no discrimination based on personal characteristics of the provider, applicant and beneficiary, and providing accessibility to the facilities where free legal aid services are provided ;
- Preservation of integrity of the proceeding within which free legal aid service is provided;
- Conscientious, independent and professional acting of the provider and respect of applicant's and beneficiary's dignity;
- Orientation towards real needs of the applicant and beneficiary and constant monitoring of their needs;
- Encouragement of the provision of general legal information and counselling about the exercise of the right to free legal aid;
- Encouragement of peaceful solution of disputes;
- Efficiency, cost-effectiveness, and sustainability of the free legal aid system;
- Use and enhancement of all existing professional capacities in providing free legal aid services;
- Encouragement of the partnership and coordination among providers;
- Transparency of all types of activities (management, leadership, decision making) within the free legal aid system;
- Control and improvement of the provision of free legal aid services, as well as monitoring the manner and results of provision of these services.
Types and Forms of Free Legal Aid
Art. 6
Free legal aid shall be provided as primary and secondary legal aid.
Primary legal aid shall be provided to everyone, without complying with special conditions.
Primary legal aid includes provision of general legal information, initial legal advice, and legal advice, as well as drafting legal documents.
Secondary legal aid includes legal representation, drafting motions, defence, and implementation of mediation procedure.
Right to Secondary Free Legal Aid
Art. 7
Application for recognition of the secondary free legal aid shall be rejected if it refers to:
- commercial disputes;
- the process of registration of legal entities;
- the proceedings for compensation for violation of honour and reputation;
- misdemeanour proceedings, unless a misdemeanour is punishable by imprisonment;
- the proceedings in which the value of the dispute would obviously be significantly disproportionate to the costs of the proceedings;
- the proceedings in which it is obvious that there would be no chance of success in the dispute, particularly if the expectations of the party are not based on the facts, collected evidence or are in contradiction with the applicable regulations, public order and good customs;
- when the applicant clearly abuses the right to free legal aid or other right.
Beneficiaries of Free Legal Aid Services
Art. 8
If the cost of providing free legal aid is to be reimbursed from the budget of the Republic of Serbia in accordance with the provisions of this Law, legal aid may be used only by a natural person who is eligible to be a beneficiary of the right to financial benefits in accordance with the law governing social protection, or a beneficiary of the right to child allowance in accordance with the law governing financial support to families with children, as well as this persons’ family or household members determined in accordance with the stated regulations.
Free legal aid referred to in paragraph 1 of this Article shall be used in accordance with the provisions of this Law by:
1) a citizen of the Republic of Serbia;
2) stateless persons who are legally residing in the Republic of Serbia;
3) foreign nationals with permanent residence in the Republic of Serbia;
4) any other person entitled to free legal aid on the basis of law or international agreement binding the Republic of Serbia.
In addition to the persons referred to in paragraph 1 of this Article, free legal aid shall also be reimbursed from the budget, in accordance with the provisions of this law by:
1) a child without parental care or contentious parental care;
2) a person in respect to which a measure of involuntary hospitalization in psychiatric institutions is implemented;
3) a person in respect to which proceedings for partial or complete deprivation of legal capacity or restoration of legal capacity are conducted;
4) a person exercising the right to protection from domestic violence;
5) a person exercising the right to protection from torture or human trafficking;
6) a person seeking asylum in the Republic of Serbia;
7) a refugee or internally displaced person;
8) a persons with disabilities who is a beneficiary of accommodation services in the system of social protection;
9) a child who is a beneficiary of accommodation services in the system of social protection;
10) children and youth who have left the service of accommodation until they reach 26 years of age;
11) adults and elderly persons who reside in institutions of social care without their consent;
12) a person exercising the right to be registered in the register of births in accordance with the rules of law governing contentious procedure.
Providers of Free Legal Services
Art. 9
Primary legal aid shall be provided by lawyers, public notaries, mediators, legal aid services established in the local self-government units, public authority bodies, associations, and law faculties.
A person providing primary legal aid must be a graduated lawyer.
Secondary legal aid shall be provided by registered providers in line with the laws governing court and administrative proceedings.
II. Registry of Providers
Integral Registry of Service Providers
Art. 10
All providers shall be entered into the Registry of Free Legal Aid Providers (hereinafter referred to as: the Registry).
The ministry competent for the judiciary (hereinafter referred to as: the ministry) maintains the Registry as an integral public electronic data base on the free legal aid service providers.
The manner of data entry and maintenance of the Registry shall be regulated by the legal act passed by the Minister.
The Subject of Registration
Art. 11
The Registry shall contain the following data on the provider:
- Personal name, professional name of the provider, as well as the seat;
- Data on registration of the provider's professional activity;
- Data on the responsible person working on free legal aid provision at the provider;
- Data on the form of legal aid that the provider is authorized to provide;
- Data on the specific professional qualification of the provider or of the person employed by the provider for providing free legal aid services.
Upon the provider's request, data on specific method of provision of free legal aid, such as provision of free legal aid by phone, e-mail, and other ways shall be registered.
If more than one provider established joint free legal aid service based on a contract, data on such agreement shall be entered into the Registry along with other data on each individual service provider.
Change of Entered Data
Art. 12
The change of the entered data referred to in Art. 11 of this Law shall be registered with the ministry not later than 15 days from the date of such a change.
Removal from the Registry
Art. 13
The ministry shall remove the provider from the Registry in the following cases:
- If the provider requested to be removed from the Registry;
- In case of death if the provider is a physical person, or if the provider is removed from the list of providers that is maintained by the organization with public authorization to maintain the list;
- If the provider ceases to exist, in case it is a legal entity;
- If a final decision was brought against the provider sanctioning him/her with removal from the Registry on the basis of the conducted procedure on the quality control of the rendered free legal aid service, in line with the provisions of this Law.
The decision of the ministry on removal from the Registry is final and it can be contested in the administrative dispute.
III. OBLIGATIONS OF LEGAL AID PROVIDERS
Diligent and Professional Acting
Art. 14
The free legal aid provider shall act independently, diligently, in line with his/her professional beliefs, led by beneficiary's justified interests.
The provider shall deliver timely and effective provision of free legal aid.
The provider must not request or receive compensation for the provision of free legal aid from the beneficiary.
The Obligation of Service Provision
Art. 15
The provider shall be obliged to provide free legal aid to the person who enjoys beneficiary status, based on the provisions of this Law, unless:
- if the beneficiary's request is not timely;
- if the beneficiary conditions the use of service by final outcome, i.e. by success in the dispute;
- if the beneficiary does not act within the limits of the law in relation to a person who provides free legal aid;
- if there is a conflict of interest between the beneficiary and the provider, or the person providing free legal aid in accordance with applicable regulations;
- if the beneficiary’s request refers to commercial disputes;
- if the beneficiary’s request refers to the process of registration of legal entities;
- if the beneficiary’s request refers to the proceedings for compensation for violation of honour and reputation;
- if the beneficiary’s request refers to misdemeanour proceedings, unless a misdemeanour is punishable by imprisonment;
- if the beneficiary’s request refers to the proceedings in which the value of the dispute would obviously be significantly disproportionate to the costs of the proceedings;
- if the beneficiary’s request refers to the proceedings in which it is obvious that there would be no chance of success in the dispute, particularly if the expectations of the party are not based on the facts, collected evidence or are in contradiction with the applicable regulations, public order and good customs;
- when the applicant clearly abuses the right to free legal aid or other right.
If the provider refuses to render free legal aid in accordance with paragraph 1 of this Article, the provider shall, without delay, notify the beneficiary and the body responsible for deciding on the exercise of the right.
Records and Reporting
Art. 16
The provider shall keep records on the provided free legal aid, especially on the number of beneficiaries and the form of rendered free legal aid.
The provider shall submit to the ministry a regular annual report with data referred to in Para 1 of this article not later than December 31 of the current year, and extraordinary reports shall be submitted upon the request by the ministry in the procedure of supervision over the implementation of the law.
The manner of keeping records and its contents shall be regulated by a legal act issued by the Minister.
Data Protection
Art. 17
The provider shall keep the data obtained in the course of free legal aid provision as confidential, especially those referring to the beneficiary, subject and the proceedings.
The use of confidential data referred to in Para 1 of this article for own or someone else's benefit, or to impair beneficiary's interests, represents an act of the provider's negligent acting.
Protection of the data on beneficiary shall be provided in line with the law regulating personal data protection and protection of data secrecy.
Functional Organization
Art. 18
The provider shall independently organize the provision of free legal aid.
The ministry shall regulate the integral standards and minimum technical standards for the provision of free legal aid, particularly in terms of the provider's obligation to inform the beneficiary on the subject, to identify the responsible person, to mark premises and to set working hours, to define the contents of the forms, orders for action, and other matters.
The provider shall provide beneficiaries with the access to information referring to the functional organization in the provision of free legal aid.
It is not allowed to disseminate information referred to in Para 3 of this article in the form of advertising.
Special Obligations of the Public Authority Bodies
Art. 19
The public authority body deciding on the right, obligation, or interest based on law shall organize legal aid services and provide general legal information, i.e. initial legal advice in relation with the performing of its authority.
The local self-government unit shall establish legal aid services and provide primary and secondary legal aid servicespursuant to the provisions of the law governing the proceedings.
The local self-government unit can organize joint legal aid services with other provider, but shall not fully transfer its obligations referred to in Para 2 of this article to other providers.
IV. THE PROCEDURE FOR EXERCISING THE RIGHT TO FREE LEGAL AID
The Request
Art. 20
The applicant shall submit the request to use secondary free legal aid (hereinafter: the application) to the local self-government body authority responsible for social protection (hereinafter: administrative authority) at the place of his/her domicile or residence, or at the place where legal aid is to be provided.
The request shall be submitted in a written form or verbally with the minutes taken.
The request can be also submitted through a legal representative or authorized person, or a person determined by the applicant.
The evidence on acting as a legal representative or verified legal authorization should be submitted along with the requestreferred to in Para 3 of this article.
The request shall not be administratively taxed.
Contents of the Application
Art. 21
The request shall include: