DECREE ON PROMULGATION OF THE LAW ON FREE LEGAL AID

Transcription

1 THE ASSEMBLY OF THE REPUBLIC OF MACEDONIA Pursuant to article 75 paragraph 1 and 2 of the Constitution of the Republic of Macedonia, the president of the Republic of Macedonia and the president of the Assembly of the Repulic of Macedonia hereby issue DECREE ON PROMULGATION OF THE LAW ON FREE LEGAL AID Herewith the Assembly of the Republic of Macedonia promulgates the Law on free Legal aid enacted on its session held on 29 December Number /1 President 29 December 2009 of the Republic of Macedonia Skopje Gjorge Ivanov President Of the Republic of Macedonia Trajko Veljanoski (personal signature)

2 LAW ON FREE LEGAL AID Chapter One BASIC PROVISIONS Article 1 This Law stipulates the right to free legal aid, the procedure by which it is realised, the beneficiaries, the conditions and the way it is realised, the providers of the free legal aid, the bodies competent to decide, the protection of the right to free legal aid, the financing and supervision of its realisation, the organisation of days for free legal advice, free legal aid in over-border disputes, as well as supervision of the implementation of the provisions of this Law. Article 2 (1) The purpose of this Law is to guarantee equal access of the citizens and of other persons defined with this Law, to institutions of the system, in order to introduce, realise, and provide effective legal aid in accordance with the principle of equal access to justice. (2) The procedure of free legal aid is an urgent procedure. Article 3 (1) Certain expressions used in this Law have the following meaning: 1. Members of the family are marital or extra-marital partner, children and relatives in a direct line to forth degree and indirect line to second degree who live in the same household with the person applying for free legal aid and jointly bear the living expenses. 2. Assets of the person applying for free legal aid are all movable and immovable property, property rights, amounts of cash in domestic and foreign currency, financial means in personal or savings accounts, gifts, securities, shares, shares in capital and other assets in ownership of the person applying for free legal aid or to adult members of the same household in the country, or abroad. 2. Beneficiary of free legal aid is any natural person who uses the forms of legal aid stipulated with this Law. 3. General legal information is a form of free legal aid containing general and principle instructions on legal regulations in a specific area. 4. Authorised citizens association is an association which pursuant to provisions of this Law, meets the conditions for providing free legal aid and which based on a decision of the Minister of Justice (hereafter: the Minister) is authorised to provide free legal aid pursuant to this Law, and is registered into the Registry of Associations of citizens for preliminary legal aid.

3 5. Legal advice is information on the manner and the possibilities of solving individual legal matter. Article 4 (1)Free legal aid, pursuant to this Law, provides the Ministry of Justice, lawyers and authorised associations of citizens. (2) Funds for approval of free legal aid are provided from the Budget of the Ministry of Justice (hereafter: the Ministry) as specific programme proposed by the Minister, and approved by the Government of the Republic of Macedonia, as well as from donations and other incomes in accordance with law. Article 5 The right to free legal aid have natural persons (hereafter: beneficiaries) in a manner and under conditions established with this Law. Article 6 (1) Free legal aid is realised in a form of preliminary legal aid and legal aid in all court and administrative procedures. (2) Preliminary legal aid comprises: - Initial legal advice on the right of using free legal aid; - General legal information; - Legal help in filling an application for free legal aid. (3) Preliminary legal aid is provided by authorised person from the regional units of the Ministry and authorised Associations of Citizens. (4) Legal aid in a procedure before competent body or organisation (hereafter: legal aid) comprises: - Representation on all instances in court and administrative procedures; - Preparation of written submissions in court and administrative procedures. (5) Legal aid is carried out by attorneys. Article 7 The free legal aid defined with this Law does not refer to cases of obligatory defence foreseen in the Law on Criminal Procedure and the Law on Juvenile Justice, nor exemption from payment of expenses of the procedure foreseen with the Law on Litigation and the Law on General Administrative Procedure. Article 8 (1) The application for legal aid pursuant to provisions of this Law shall be approved in all courts and administrative procedures if it resolves matter of interest of the person applying for legal aid.

4 (2) The issues with reference to paragraph (1) of this Article are the following: the rights covering social, health, pension and disability insurance, labour relations, children and juvenile protection, victims of domestic violence, protection to victims of criminal acts, protection of victims of human trafficking and property issues. Article 9 Free Legal aid, pursuant to provisions of this Law, shall not be approved in cases which are obviously unreasonable or there are no legal facts based on which legal actions can be undertaken. Article 10 The Ministry decides upon filed application on free legal aid. Article 11 The Ministry carries out actions regarding the free legal aid in collaboration with: the Bar Association, the bodies of judicial power, the bodies of State Administration, Centres of Social Work, Associations of Citizens and other bodies. Chapter Two BENEFICIARIES OF FREE LEGAL AID Article 12 (1) Right to free legal aid have persons from paragraph (2) of this Article, who according to their material position could not exercise their constitutional and guaranteed rights without imperilling their own sustenance and the sustenance of the members of their family with whom they live in a common household. (2) Right to free legal aid according to this Law have the citizens of the Republic of Macedonia with permanent residence in the Republic of Macedonia, and these are the following: - Persons beneficiaries of social aid; - Beneficiaries of right to disability allowance who do not have other incomes as profit or incomes from real estate; - Beneficiaries of lowest monthly pension living in family community with 2 or more family members that are maintained by them; - Families or a single parent with one or more underage children who exercise the right to child allowance. (3) Free legal aid pursuant to this Law shall also be granted to: - Person granted an asylum, internally displaced person, and displaced or expelled person who resides on the territory of the Republic of Macedonia;

5 - Foreign citizen, who in accordance with international treaties, regardless whether he/she resides or habitats on the territory of the Republic of Macedonia, exercises rights under the competence of a state authority of the Republic of Macedonia, - Stateless person who lawfully resides on the territory of the Republic of Macedonia, - Citizen of a state member of the European Union under conditions and manners stipulated with this Law. (4) It shall be considered imperilled the sustenance of a person requesting free legal aid and the sustenance of the members of his family with whom the person lives in shared household if all of the incomes of that person and the members of person s household do not exceed the amount of 50% of the average monthly salary in the Republic of Macedonia for the previous month within the time the application for free legal aid is submitted. (5) The income of the person applying for free legal aid may be assessed individually, if there are conflicting family interests in dispute for which free legal aid is requested. (6) For persons beneficiaries of social allowance or disability allowance, and do not gain any other incomes, or receive child allowance, the Ministry gathers information by the Centre of Social Welfare. (7) The financial status of the person requesting free legal aid shall be established on grounds of a proof issued by competent authority regarding incomes from all sources of that person and of the members of his/her household, and on the bases of a Statement for his/her material-social conditions in the period of six months prior to submitting the application. Article 13 Income of a person applying for free legal aid, or of the members of his/her family living in same household, is considered to be the whole immovable and movable property except: - Child allowance, - Disability allowance, - Allowance for care of other persons, - Scholarships and other incomes, for purpose of education and training, - Means received due to elimination of consequences of natural disaster, - Compensation of damage due to reduced vital activity, - Compensation of damage for unjustifiably accused persons or unlawfully deprived from freedom, - Financial means allocated for medical treatment abroad. Article 14 (1) Free legal aid shall not be approved if the assets of the person applying for free legal aid or member of his/her family living in the same household exceeds five gross monthly average salaries paid in the previous month in the Republic of Macedonia (2) According to paragraph (1) of this Article, assets are not considered to be:

6 - objects which according to the Law on Execution are exempted from execution. - Vehicle in value that does not exceeds five monthly average salaries paid in the previous month in the Republic of Macedonia Chapter 3 EXERCISING RIGHT TO FREE LEGAL AID Article 15 Free legal aid encompasses those expenses of the procedure which occurred after the day of the approval of the application for free legal aid, as well as actions of legal aid that, after the day when the legal aid was approved, have not yet been executed. Article 16 Preliminary legal aid is provided by authorised officials in the regional units of the Ministry and authorised associations of citizens entered into the Registry of Associations of Citizens for Preliminary Legal Aid. Article 17 (1) Authorised Associations of Citizens can provide preliminary legal aid if they meet the conditions stipulated with this Law: 1. To be registered in the Registry of Associations of Citizens in the Central Register of the Republic of Macedonia; 2. To have at least one lawyer with passed Bar exam employed; 3. The Act for establishment and the Statute of the Associations of Citizens should clearly show that one of the goals for establishment of the association is providing preliminary legal aid. 4. To have a contract on insurance on possible damage from counselling for at least the lowest insurance policy. (2) The content of the application for obtaining authorisation for providing preliminary legal aid is endorsed by the Minister. Article 18 (1) The regional units of the Ministry of Justice may provide preliminary legal aid if they are in compliance with the conditions stipulated with this Law, respectively, if they have at least one graduated lawyer who has passed Bar exam and will be appointed by an Act of the Minister of justice as authorised person for providing preliminary legal aid (2) In case of damage occurred while providing preliminary legal aid, the redress for it goes on the burden of the Budget of the Republic of Macedonia.

7 Article 19 (1) The Associations of citizens authorised to provide preliminary legal aid may not use any form of advertisement for providing preliminary legal aid pursuant to the provisions of this Law. Unlawful advertising may cause termination of the permission to provide preliminary legal aid. (2) The Ministry of Justice informs the citizens on the right and the manner on how to use free legal aid through the public information services (printed and electronic). (3) The Ministry on every three months is obliged to announce updated list of authorised Associations of Citizens for free legal aid. Article 20 (1) The application for free legal aid, the persons included in the article 12 paragraph (2)of this Law, submit to the competent regional unit of the Ministry, in person or by mail, using a template with content authorised by the Minister. (2) There is a written statement enclosed with the application, signed by the applicant and the members of his/her family from the same household and share the living costs, for their overall immovable and movable assets as well as permission for review of all the data of their financial state. (3) Exemption from paragraph (2) of this Article is when a person requesting free legal aid is a victim of domestic violence, then the Statement from paragraph (2) of this Law is submitted in person and there is no need to be signed by the other members of his/her family, and the application is treated with urgency. (4) When an applicant of free legal aid is of the category stipulated with article 12 paragraph 3 of this Law, he/she shall attach a proof of his/her status, issued by competent body. (5) The applicant shall be materially and criminally liable for the accuracy of the data given in the application (6) The procedure on free legal aid is exempted from administrative taxes. Article 21 (1) The authorised officer form the regional unit of the Ministry is obliged to deal with the application immediately, considering the urgency of the dispute foreseen in the respective procedure and not later than 12 days from receiving it, to complete it and to forward it to the Ministry. (2) The state body competent for the citizen s assets is obliged, on the bases of the signed Statement from paragraph (2) Article 20 of this Law, immediately, and not later than three days to submit to the Ministry the requested data for the state of the assets of the person applying for free legal aid. Article 22

8 (1) The Ministry is obliged to act upon the free legal aid application not later than 8 days from receiving the application by the regional unit of the Ministry, considering the urgency of the dispute foreseen in the respective procedure. (2) The Minister decides upon the application for free legal aid with a decision. Article 23 Against the decision for refusing the application for free legal aid, the unsatisfied party may initiate an administrative procedure before a competent court. Article 24 (1) In case of approved free legal aid, regarding an attorney the beneficiary s choice shall be respected if there is a possibility for such thing. In the decision of article 22 paragraph 2 of this Law, the ministry in cooperation with the beneficiary chooses the attorney assisting the legal aid. (2) In cases when the pertinent Attorney s office fails to register the attorney into the free legal aid attorney s registry, then the Ministry selects attorney from other closest attorney s office as foreseen with paragraph 1 of this article. Article 25 (1) Following the approval of the application for free legal aid, the beneficiary has to meet all conditions in the course of the whole procedure for which the aid has been approved until its completion, and shall inform the Ministry within 8 working days of any change that might occur in due course that might influence the exercise of this right. (2) In case of paragraph (1) of this Article, if the beneficiary does not inform the Ministry in the period defined of any change that might influence the exercise of this right, the Ministry may decide to terminate the free legal aid and ask for compensation of costs in court procedure. Article 26 (1) If after the approval of the application for free legal aid, there is a change of the financial condition of the beneficiary that could have led to rejection of the application, then the Minister shall reach a decision to terminate the free legal aid. (2) If it is established that the person has provided false data in order to use the right of free legal aid, a decision will be reached not to allow the person to exercise this right and he/she will not be allowed to apply again within the next 6 months from the day when the decision is reached. (3) If during the period of using free legal aid it is established that the person provided false data in order to use the right of free legal aid, the Minister with a decision will terminate this right and will ask for return of the finances within eight days.

9 (4) Against the decision from paragraphs 1,2 and 3 of this article administrative dispute can be initiated before competent court Chapter Four REGISTRY FOR LEGAL AID AND SUPERVISION Article 27 The Ministry maintains Registry of lawyers providing legal aid (hereafter: Registry of Lawyers) and Registry of Associations of Citizens of preliminary legal aid. Article 28 (1) The Registries from Article 26 of this Law shall be maintained in written and electronic form, and shall be published on the web page of the Ministry. (2) The Ministry submits a copy of the Registry of lawyers to the Bar Association of the Republic of Macedonia. Article 29 (1) The lawyer fills in the application for enrolment in the Registry of lawyers and submits it to the Ministry. (2) The Ministry may request validation of the data from the application from paragraph 1 of this Article from the Bar Association. (3) The Minister reaches a decision for the respective enrolment of the lawyer in the Registry from paragraph of this Article within 8 days after the application has been received. (4) The form and the contents of the application from paragraph (1) of this Article is prescribed by the Minister. Article 30 (1) The associations of citizens interested in providing preliminary legal aid in accordance with this Law, submit a request for obtaining authorisation of the Ministry and submit the supporting documents as defined with Article 17 of this Law as follows: the Act of Establishment and the Statute of the Association, evidence of employment of Lawyer with a Bar exam, copy from the insurance policy, and evidence that the association has been registered in the Central Register of the Republic of Macedonia for Association of Citizens. (2) The Minister is obliged to decide upon the application within 30 days of its reception with an act authorising the association to provide preliminary legal aid and registers those in the Register of Associations of Citizens for preliminary legal aid.

10 (3) Against decision issued by the Minister for rejecting of the request for entry in the Registry of Associations of Citizens for preliminary legal aid administrative dispute can be initiated before a competent court. Article 31 (1) The Minister shall refuse to enter a lawyer in the Registry or shall exclude the registered lawyer from the registry in cases when: - The lawyer has received a disciplinary measure in performing the profession; - If in the course of the regular supervision over the entrusted case, it has been established an irresponsible and unprofessional performance of the entrusted duty. (2) The exclusion from the Registry shall be enforced upon Minister s decision. (3) Against the decision of the Minister to reject the request for entry of a lawyer in the Registry of lawyers, or decision to exclude the lawyer from the Registry, the lawyer has a right to initiate administrative dispute before a competent court. (4) The exclusion from the Registry shall be published on the web page of the Ministry and shall be submitted to the Bar Association. Article 32 (1) The Minister shall exclude from the Registry the Association of citizens authorised to provide preliminary legal aid in cases when: -in the course of the regular supervision over the entrusted case, it is established irresponsible and unprofessional performance of the entrusted duty, -the citizens association does not meet the criteria any longer defined with article 17 of this Law, and - establishes unlawful advertisement of the association. (2) Against the decision of the Minister an administrative dispute can be initiated before a competent court. (3) The exclusion from the Registry of the citizens association authorised to provide preliminary legal aid shall be published on the web page of the Ministry. Article 33 The supervision of the implementation of the provisions of this Law is performed by the Ministry of Justice. Article 34 (1) The Ministry shall supervise the work of the lawyer and the authorised citizens association when providing free legal aid. (2) The Ministry, while performing the supervision as of paragraph (1) of this Article, has the right to request opinion from the competent body before which the procedure is running, as well as other information from the person who was granted legal aid.

11 Article 35 (1) The Ministry submits Annual Report for the activities related to free legal aid to the Government of the Republic of Macedonia. (2) The report as of paragraph (1) of this Article shall be published on the website of the Ministry. (3) The report shall particularly contain data on: - The number of submitted applications for free legal aid; - The number of decisions of approved legal aid; - The number of decisions of rejected free legal aid; - The nature of matters for which the free legal aid has been approved; - The sum of the finances allocated for approved legal aid; - The amount of reimbursed funds from costs paid during execution procedure - Statistical indicators, and -number of days held of free legal advice. (4) The Annual Report of the Government of the Republic of Macedonia submits the Assembly of the Republic of Macedonia within 30 days of the adoption. Chapter Five REMUNARATION FOR LEGAL AID SERVICES Article 36 (1) The lawyer s remuneration for provided legal aid shall be calculated in accordance with the price list of lawyer s for the amount of work performed in each separate case, submitted to the Ministry, and in accordance with the Remuneration Tariff and lawyer s services but lowered for 30%. (2) The attorney shall submit the price list in a prescribed template. (3) The lawyer s fee shall not be paid in accordance with the decision of the Ministry, if in regular supervision, the Ministry establishes that the lawyer has performed the entrusted duty irresponsibly and unprofessionally, (4)An administrative dispute against the decision, from paragraph (3) of this Article, can be initiated before a competent court. (5) The contents of the template as of paragraph (2) are prescribed by the Minster. Article 37 (1) The remuneration to the authorised citizens association for the provided preliminary legal aid shall be calculated in accordance with the price list for the amount of work performed for each separate case, submitted to the Ministry, and in accordance with the Remuneration Tariff of the Associations of Citizens. (2) The associations of citizens shall submit the price list in a template.

12 (3) The fee to the Association of Citizens shall not be paid in accordance with the decision of the Ministry, if in regular supervision the Ministry establishes that the associations of citizens have performed the entrusted duty irresponsibly and unprofessionally, (4) An appeal against the decision, from paragraph (3) of this Article, can be initiated before competent court. (5) The tariff from paragraph (1) of this Article is proposed by the Minister made in collaboration with the associations of citizens and foundations according to article 11 of this law. (6) The contents of the template as of paragraph (2) is proposed by the Minster. Article 38 (1) The Republic of Macedonia i.e. the Ministry is a creditor, or debtor for remuneration of the costs of the execution procedure pursuant to the Law on Execution. (2) The request for execution shall be submitted by the Ministry. Chapter 6 DAYS OF FREE LEGAL ADVICE Article 39 (1) The Ministry in cooperation with the Macedonian Bar Association, the Notary Chamber, The Chamber of Executors, and the Chamber of Mediators quarterly organises days of free legal advice for all citizens for issues regarding mediations, advocacy, notary issues and execution. (2) The Ministry adopts three-month plan for the period and the schedule of the days for free legal advice, which is publicly announced in the daily newspapers. Chapter 7 SPECIAL PROVISIONS ON APPROVING FREE LEGAL AID IN OVER- BORDER DISPUTES Article 40 (1) Over-border dispute as defined with this Law is a dispute in which the party submitting the application for free legal aid lives or has a permanent residence in a state member of the European Union where the competent court is or the decision is implemented. (2) Legal aid in over-border disputes is approved in litigation proceedings in all stages and on all instances and in procedures of mediation. (3) Free legal aid is not approved in administrative, tax and customs issues.

13 (4) The existence of over-border issue is established following the timing the application for free legal aid was submitted. Article 41 (1) To the person submitting the application for free legal aid in over-border disputes the application shall be approved if he/she meets the criteria stipulated with this Law in the amount determined as for a citizen of the Republic of Macedonia, in a manner and procedure determined with this Law. (2) Apart from paragraph (1) of this Article, free legal aid may be approved when the person applying does not meet the criteria stipulated with this Law, but can prove that he/she is not in a position to cover the costs due to the living expenses difference between the member country where he/she has residence or place of permanent stay and the Republic of Macedonia. (3) Free legal aid may not be provided to a person who in the particular case has an effective access to other mechanisms of legal aid which cover the costs for the procedure stipulated in Article 43 from this Law. (4) In procedure for providing legal aid in over-border disputes the administrative taxes are not paid. Article 42 (1) The person that has residence or place of permanent stay in a country member of the European Union, and is applying for free legal aid in over-border dispute before a court in the Republic of Macedonia, exercises the right of free legal aid according to this Law. When establishing residence or place of permanent stay the Law of the country the respective person is having residence or place of permanent stay is applied. (2) The person from paragraph (1) of this Article and the competent body of the member state in which the applicant has residence or place of permanent stay, the applications for free legal aid are submitted to the Ministry. (3) The templates and all the submitted documents have to be translated into Macedonian language, if not; the application for free legal aid shall be rejected. (4) The Ministry with a decision will reject the application if establish that it is not an over-border dispute as defined with this Law, or if the application was submitted by a party who has no right to free legal aid in over-border disputes. (5) Against the decision which rejects the application for free legal aid administrative dispute can be initiated before competent court. Article 43 Free legal aid approved in the state member of the European Union where the court has jurisdiction will cover the following expenses in connection to the over-border dispute: 1. Interpretation 2. Translation of documents which the court requested or the competent body and which are necessary for resolving the case,

14 3. Travel expenses for the applicant when the presence of the persons responsible for presenting the case of the applicant is required in the court, according to the Law or the court of that member state, when the court decided that the persons could not be sufficiently heard in any other way. Article 44 (1) Person having residence or place of permanent stay in the Republic of Macedonia, and applies for free legal aid in over-border disputes before a court of other country, member state of the European Union, submits the application to the regional unit of the Ministry that is obliged to forward the application to the Ministry within 15 days from the day of receiving the application. (2) The Ministry will translate the application and the supporting documents into the official, or into one of the official languages of the member states of the European Union and will submit it to the competent body for receiving written submissions of the member state of the European Union in which the court has jurisdiction and in which the court decision is to be implemented, not later than 15 days after receiving the application. If the application for free legal aid is not approved, the person applying for free legal aid is obliged to cover the translation costs. (3) The Ministry shall reject the application with a decision if it establishes that the dispute is not an over-border issue as defined with this Law, or if the party applying does not have the right of free legal aid in over-border disputes. (4)Against the decision for rejecting the application for free legal aid, an administrative dispute procedure can be initiated before competent court. (5) As an exception from paragraph (1) of this Article, the free legal aid application can be submitted directly to the body competent for receiving applications in the member state of the European Union in which the court needs to execute the court decision. Article 45 The State member of the European Union where the person applying for free legal aid has a residence or place of permanent stay shall provide legal aid necessary to cover: 1. Expenses for lawyer s services or other person authorised by Law to provide legal services, which occurred in particular member state while the application for free legal aid under the jurisdiction of the pertinent court is still not approved. 2. Translation of the application and the supporting documents submitted to the bodies of that member state. Article 46 (1) The application for free legal aid and sending application for free legal aid pursuant to Article 42 of this Law is submitted in prescribed templates. (2) The form and the content of the templates from paragraph (1) of this Article are proposed by the Minister.

15 Chapter 8 TRANSITIONAL AND FINAL PROVISIONS Article 47 The by-laws set forth with this Law the Minister shall enact within a period of three months upon entering into effect of this Law, and the by-laws from article 46 will be promulgated within one year. Article 48 The provision from Article 40, paragraph (1) does not apply to Kingdom of Denmark. Article 49 (1) The provisions pursuant to article 18 of this Law shall take effect on 1 January 2012 (2) The provisions pursuant to articles 40 to 46 of this Law shall take effect with the accession of the Republic of Macedonia in the European Union. Article 50 This law enters into force within eight days of being published in the Official Gazette of the Republic of Macedonia and shall start being implemented within six months of the day entering into force.