Lithuania: Reforming Legal Aid Services and Administration

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Conference on Legal Aid Reform in Lithuania

Reforming Legal Aid in Lithuania

Lithuanian Ministry Calls For National Public Defenders

Background

The host of legal changes that accompanied the political transition since Lithuania regained independence in 1991 has created an unprecedented need for lawyers for the poor. Indigent defendants in Lithuania have long had to rely for legal defense exclusively on an ex-officio appointment system inherited from, and largely unchanged since, Soviet times. Payments under the system are issued in exchange for vouchers tendered as evidence of an attorney’s presence at key moments valued by the former Soviet government—during police and prosecutorial interrogations as well as court proceedings—at an hourly rate. Payment is erratic, insufficient, and often late. Other efforts central to effective representation, such as client meetings, investigations and trial preparations, are either entirely unrecognized for purposes of payment, or return a fixed token sum. Payment imposes no obligations of quality—negligent and diligent lawyers both receive the same fees.

The system has improved little since the bar gained independence from the government and lost its power as a state institution to compel lawyers to fulfill their appointments. As wealth disparities and crime rates have increased, lawyers who can, increasingly choose lucrative paid work over ex officio assignments. Today, absent incentives for lawyers to defend rights vigorously and compellingly, indigent defendants in Lithuania’s courts generally receive cursory representation in a system which emphasizes bare fulfillment of formal obligations and fails to satisfy either Lithuania’s constitutional ideals or its international obligations. [1]

Objectives

These circumstances spurred the Ministry of Justice of Lithuania and the Lithuanian Bar Council to join forces with the Open Society Fund—Lithuania and the Open Society Justice Initiative (formerly COLPI) to explore institutional alternatives to address the needs of poor criminal defendants. Together they founded the Šiauliai Public Defender Office in 2000 and, two years later, a second public defender office in Vilnius. Both initiatives seek to establish and encourage institutions of public defense dedicated to the delivery of high-quality legal services to the indigent at reasonable cost.

In a relatively short period of time, the pilot public defender offices have substantially improved the representation indigent defendants receive in their respective regions. They have also played an important role in revealing serious deficiencies in the existing system for delivering, monitoring and valuing legal services to the indigent accused—including ineffective management of state funds and attorney time, an absence of reliable data, and highly variable service quality. In response, the project partners have sought to expand on the pilot offices to assist the government in reforming the institutional structure and administration of legal aid in Lithuania.

Activities

Public Defender Offices in Vilnius and Šiauliai
The Šiauliai Public Defender Office opened in April 2000 with five full-time criminal defense lawyers. It services clients in criminal matters within the jurisdiction of trial courts in the city of Šiauliai (population c. 140,000) and the Šiauliai regional court. The office was the first in Eastern Europe or the former Soviet Union dedicated exclusively to providing legal defense from arrest through trial and appellate review in criminal cases in which the defendant is entitled to the appointment of a lawyer under national law.

The Vilnius Public Defender Office, with eight full-time criminal defense lawyers and one assistant, opened in May 2002 in Lithuania’s capital. Staff attorneys assist clients in criminal matters within the jurisdiction of trial courts primarily in the second administrative district of Vilnius, as well as appellate courts, and higher courts of first-instance. The office offers legal internship placements for students from the fourth year of their studies at Vilnius University for a period of at least four months.

The public defender offices aim to fulfill three chief objectives:

To service a substantial portion of the public’s need for criminal defense representation in the pilot regions;
To ensure consistently good quality legal defense in accordance with international standards, the Lithuanian Constitution, and Lithuania’s Criminal Procedure Code and Criminal Code;
To offer a functional, viable institutional model of legal aid that will uphold the rights and priorities of Lithuania’s justice system at a reasonable cost.

Lawyers from both offices work in a vertical representation system—once the office acquires a case, it represents the client until the case is resolved, including through any appellate review. Accordingly, clients benefit from consistent representation by one lawyer, or her colleagues from the same office, rather than having a new lawyer for every stage, as happens often with ex officio lawyers.

In 2003, both offices were designated by the Bar Council of Lithuania to coordinate the appointments of lawyers to criminal cases in, respectively, the Šiauliai region, and one of Vilnius’ five administrative districts. Both offices are also developing systematic case coordination and intake policies and practices. The Vilnius Office is testing alternative approaches to accounting for the time and quality of an attorney’s work, with a view to developing a payment system that rewards time and effort invested in the defense of rights (rather than mere presence at legally required stages of a criminal proceeding). A second objective is to streamline accounting procedures for the state institutions that must evaluate and pay lawyers for their work on indigent cases.

Future project activities will aim at improving office management and the quality of representation. The offices are establishing written guidelines and quality standards on all major aspects of public defender office operations, for subsequent adoption in offices nationwide.

Reforming the Institutional Structure and Administration of Legal Aid
In 1999, the Seimas (Lithuania’s Parliament) adopted a “Law on State-Guaranteed Legal Aid”, thereby creating a mandate to deliver legal aid to the poor. However, although forward-looking, the law and the Constitutional right to counsel that it is intended to fulfill cannot function effectively absent a proper control and implementation mechanism and/or oversight body. Existing administrative provisions are insufficient on their own to ensure that legal aid is delivered in a consistent and systematic manner. Some countries have resolved comparable dilemmas by forming legal aid boards or councils—these include the Netherlands, Israel, South Africa, the United Kingdom, as well some states of the United States. The creation of a single administrative body in these countries to oversee legal assistance to the poor has resulted in effective management of legal aid needs and services.

In 2002, together with the Ministry of Justice and the Lithuanian Bar Association, the Justice Initiative established an informal coalition to develop the legal foundation for a comprehensive revamping of the legal aid system. Several months’ successful collaboration led to the establishment (by Prime Ministerial decree on 3 February 2003), of a formal working group to prepare guidelines for the reform of the state-guaranteed legal aid system and to draft the legislation necessary to submit a fully-fledged reform plan to the Seimas.

The Secretary of the Ministry of Justice heads the working group, which also includes representatives of the Seimas, the Office of the General Prosecutor, the Lithuanian Bar Association, the Ministry of Finance, the Vilnius Public Defender Office and the Justice Initiative.

The Justice Initiative has informed the process by organizing study visits for working group members to examine other countries’ legal aid delivery systems. In November 2002, members traveled to the Netherlands, where they met with the Legal Aid Board and individual legal service providers. During the same month, one member attended the National Legal Aid and Defender Association annual conference in the United States, to confer with colleagues in legal aid administration and observe the operations of several direct legal aid providers. A month later, the group participated in the European Forum on Access to Justice in Budapest, where they had an opportunity to learn about legal aid developments and models from around the world. In April 2003, working group members visited South Africa to examine first-hand the systems in place for meeting legal aid needs in that country. During each visit, working group members exchanged experiences and ideas with experts in the field, and explored the balance between quality and cost-efficiency achieved elsewhere.

On April 28-29, 2003, the Justice Initiative convened a roundtable near Vilnius to distill some of the key insights gained in the course of the study visits and to invite international experts to comment on the working group’s initial ideas for reforming Lithuania’s legal aid system. The working group subsequently submitted a concept paper on improving the state legal aid system to the Ministry of Justice. Implementing legislation should be drafted by the end of the fall and submitted to Parliament by the end of 2003.

Reform of the legal aid system will inevitably require an increase in budget allocation for legal services. In order to begin to quantify the necessary adjustment, the Justice Initiative has launched a needs assessment survey, carried out by the Law Institute of Lithuania, to determine the volume of criminal cases requiring legal aid. In parallel, a “time accounting” survey is underway in Vilnius to assess the amount of time lawyers must dedicate to perform specified activities at each stage of a criminal case. By tallying the accumulated costs of separately vouchered actions on individual cases, the surveys will also ascertain the total cost that various categories of cases generally present. The combined survey results should provide a clearer picture of the budget needed to meet the demand for legal aid in the country.

Partners

Open Society Foundation—Lithuania
Lithuanian Ministry of Justice
Lithuanian Bar Council

Notes

[1] The Constitution of the Republic of Lithuania guarantees the right to a fair trial in some detail (Articles 20-31). Lithuania has ratified the European Convention on Human Rights and Fundamental Freedoms, and the International Covenants on Civil and Political and on Economic, Social and Cultural Rights, all of which guarantee the right to a fair trial including equality of arms. [back]

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Lithuanian Bar Association

Date: 16 May 2007

Lithuanian Ministry of Justice

Date: 16 May 2007

Description for the post of Public Defender Office director

Date: 2007

Momentum for Legal Aid Reform Builds Across Europe and Beyond

Date: 28 February 2005

Lithuanian Parliament Revamps Legal Aid

Date: 20 January 2005