Tirana Legal Aid Society is implementing the project “Enhancing the protection of rights of accused“. This is a regional project that primarily targets attorneys-at-law who appear as ex officio defenders of accused before courts, as well as civil society organizations from all five countries that are active in the field of judicial reforms and rule of law.
The overall goal of the project is to contribute to the enhancement of the system of legal protection of accused in Bosnia and Herzegovina, Serbia, Macedonia, Kosovo, and Albania through a transparent system of appointment, payment and competence ensuring of ex officio legal defense lawyers. The project is financed from USAID through the Balkan Regional Rule of Law Network Program implemented by American Bar Association Rule of Law Initiative for a period of 12 months.
The results of performed comparative analysis on the criminal defense advocacy in five countries in the region and the work of the members of the expert work groups, which discussed problems in the functioning of the criminal defense, showed that all five countries in the region are facing serious challenges in ensuring the quality of access to justice for all citizens. In accordance with the recommendations of the above mentioned analysis, it is necessary to identify the most important issues affecting the establishment and operation of a transparent system of ex officio defense - particularly in the areas of assigning counsel ex officio determination and payment of fees to lawyers involved, competence assigned to the lawyers necessary to provide effective defenses by officio to accused persons and possibilities for setting up alternative models in ex officio defense.
In accordance with the provisions of the criminal law in Albania, Bosnia and Herzegovina, Kosovo, Macedonia and Serbia free legal assistance is provided to all persons accused of certain crimes that are not able to pay for a lawyer. However, experience so far has shown that all five countries are facing problems of law enforcement in practice, and ensuring adequate access to justice for all citizens. As the most important problems in providing adequate defense ex officio for accused persons is mostly referred to: the lack of transparency in the appointment of lawyers by ex officio, inadequate compensation for appointed lawyers, as well as their competence in providing defense for the accused.
The existing practice in Albania is burden with non-equal treatment of the lawyers, serious lack of the lawyers’ capacity and dedication and variety of practical solutions which are different from court to court. The non-equal practice creates fertile ground for corruption and ruins the whole system. The practical consequence is jeopardizing the right to the fair trial.
It is the unquestionable right of all people to choose the most qualified lawyer who can represent him/her in front of the court. The fact that someone is not in the position (from various reasons) to pay the lawyer should not mean that the quality of the service will be lower or not equal with the one who can pay the lawyer.
For their work, lawyers need to be adequately paid. The right system of lawyers’ fees is important for exercising the right on fair trial. Existing practice in Albania is not consistent and there is a lack of motivation among lawyers to accept ex-officio defense cases.
Some recommendations for improving the system are:
- New regulation within the chamber with all rules and procedures for ex-officio lawyers’ appointments;
- Update of the ex-officio lawyers’ lists in chamber;
- Installing the software which could track all the ex-officio lawyers;
- Sanctions for the courts which are not respecting the chamber list of ex-officio lawyers;
- New tariff for the ex-officio lawyers ;
- Unified tariff for all legal procedures;
- Changing the practice of payment of ex-officio lawyers and payments on the basis of working hours;
- Simplification of the administrative procedures for payments to the ex-officio lawyers;
- Inclusion of free legal aid services in ex-officio defense system;
- Full responsibility of Chamber over the education and tracking the records of ex-officio lawyers;
- Inclusion of the disciplinary proceedings against the lawyers into their dossiers;
- Changing the Criminal Proceeding Code that foresees that the lawyer is selected exclusively from the prosecutor;
Tirana Legal Aid Society TLAS