Right to Fair Trial

III. State-Guaranteed Legal Aid

The state-guaranteed legal system is currently in its tenth year of practice in Lithuania. The 2005 reform sought to expand the list of persons who are eligible for state-funded legal counsel in individual cases.

The most recent edition of the Law on State-Guaranteed Legal Aid was adopted in 2013.[1] The amendment further expanded the list of persons eligible for free state-guaranteed legal aid. This right was conferred to persons deemed incapable, as well as to persons involved in legal proceedings for the return of a wrongfully removed or retained child in accordance with the Hague Convention of 25 October 1980, regardless of their wealth or income level.

Individuals complain that advocates do not prepare documents properly, or that they do not adequately prepare for trial, with counsel for foreign nationals often coming to hearings without ever having met their client or even being able to speak with them.

At the same time, the amendments also expanded the list of subjects capable of providing legal aid in individual cases: legal aid may be provided by any advocate chosen by the person, with advocate's assistants (pupil advocates) also given the ability to provide legal aid in individual cases. The end result is that both the list of persons capable of providing legal aid as well the list of persons entitled to it have grown.

In 2014, legal aid in individual criminal proceedings (regardless of a person's wealth or income level) was extended to minors who were victims of crimes against a person's health, liberty, sexual self-determination and inviolability, against a child or family and against morality, as well as in other criminal proceedings where the presence of an authorized representative is deemed necessary by the pre-trial investigation officer (by way of a reasoned resolution) or the court (by way of a reasoned ruling).[2]

The amendments also clarified the procedure for assessing the quality of the services provided by legal aid advocates: the assessment, which is carried out by the Lithuanian Bar Association, must be completed within one month. The Ministry of Justice initiated this particular amendment to the Law on State-Guaranteed Legal Aid because it considered the length of the examination of complaints regarding legal services, which averaged at around six months at the time, to be too long.  

By the way, the Lithuanian Bar Association only brought disciplinary proceedings against two advocates providing state-guaranteed legal aid services in 2013-2014. In one case, the advocate received a reprimand; in the other, the proceedings were limited to a disciplinary hearing. [3]

Even though the Lithuanian Bar Association is in charge of assessing the quality of legal aid services provided by advocates, the quality of said services is still frequently cited as subpar. Notably, in practice individuals and NGOs frequently speak about the inadequate quality of the services provided by state-guaranteed legal aid lawyers: individuals complain that advocates do not prepare documents properly, or that they do not adequately prepare for trial, with counsel for foreign nationals often coming to hearings without ever having met their client or even being able to speak with them.

The issue of unpaid fees to advocates providing secondary legal aid also demands attention.[4] The unpaid fees owed by the state to advocates for services rendered in 2013 amounted to almost 5,6 million LTL (around 1,6 million Euro).[5]

In order to deal with this problem, persons whose wealth and income levels exceed the statutory minimum were put under a duty to cover the fees of the state-appointed counsel in cases when the provision of an advocate in criminal proceedings is mandatory, provided they have been convicted.[6]

It should be noted that a duty such as this in the event of conviction raises doubts about whether the legal regulations comply with the principle of judicial protection.

The Law on State-Guaranteed Legal Aid does not apply to foreigners whose right to state-guaranteed legal aid is provided for in the Law on the Legal Status of Foreigners. The Ministry of the Interior (or an institution it authorizes) is responsible for the provision of state-guaranteed legal aid to foreigners in circumstances prescribed by the Law on the Legal Status of Foreigners, organizing calls for tenders and awarding contracts to legal service providers with the lowest bid. It is doubtful whether this criterion for determining the winning tender – namely, the lowest price – is sufficient and appropriate for ensuring that the foreigners receive high-quality legal aid services.

In practice it is common for foreigners trespassing on Lithuanian soil or seeking asylum to receive state-guaranteed legal aid on issues relating to their legal status from an advocate appointed by the Ministry of the Interior (or an institution it authorizes). At the same time, in criminal proceedings against that same foreigner for illegal entry into Lithuania, he is represented by another advocate, appointed by the pre-trial investigation officer or the court in accordance with the Law on State-Guaranteed Legal Aid. In practice this leads to the interests of such foreigners not being represented properly, since two separate advocates provide legal aid to the same person on different but often directly interconnected issues, with advocates appointed this way not coordinating with regard to the client's interests.

Findings and Recommendations

  • The amendments expanding the list of persons capable of providing secondary legal aid are to be commended.
  • There is a lack of measures to ensure competition among advocates providing legal aid services – this would improve the quality of legal aid services.
  • Stricter and more vigilant supervision of the quality of secondary legal aid services is necessary.
  • While state institutions are shaping the budget and lowering the cost of administering the state-guaranteed legal aid scheme, it is necessary to deal with the issue of outstanding fees owed to advocates by the state.
  • Measures must be taken to ensure that the legal aid process is as simple, fast and clear to both its recipient and the public at large.

[1] Law Amending the Law on State-Guaranteed Legal Aid, 9 May 2013, No. XII-270, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=448797&p_tr2=2

[2] Law Amending Articles 12, 13, 14, 21 and 24 of Law No. VIII-1591 on State-Guaranteed Legal Aid, 25 September 2014, No. XII-1149, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=483690&p_tr2=2

[3] Lithuanian Bar Association, 2014 Report of the Court of Honour of Advocates, http://www.advoco.lt/download/42328/advokatu%20garbes%20teismo%20ataskaita%202014.pdf

[4] "State Owes More than 3 Million Lt to Advocates", delfi.lt, 14 August 2013, http://www.delfi.lt/news/daily/law/valstybe-advokatams-skolinga-beveik-3-mln-lt.d?id=62081975; http://www.ve.lt/naujienos/ekonomika/ekonomikos-naujienos/auga-isiskolinimai-valstybes-garantuojamiems-advokatams-1109866/

[5] Ministry of Justice, 2013 Report on Secondary Legal Aid, http://www.teisinepagalba.lt/dok/20140925_2013%20ATP%20ataskaita.pdf

[6] Law Amending the Law on State-Guaranteed Legal Aid, 9 May 2013, No. XII-270, Article 21,
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=448797&p_tr2=2