Legal Aid Reform in Mongolia

Legal Aid Reform in Mongolia

Background
According to the World Bank, 35 percent of Mongolians live under the official poverty line, with 23 percent surviving on an income of under U.S. $0.40 per day (See Mongolia country brief). Access to justice is just one of many hardships generated by poverty on this scale, but it is an important one: when faced with criminal charges and possible loss of liberty, few can afford a lawyer. Although the right to free legal assistance is guaranteed in Mongolian law, including the 1992 Constitution (article 16), the 2002 Law on Courts and on Advocacy, the legal aid system itself is inefficient and underfunded.

In 2002, the Mongolian Foundation for Open Society (MFOS) commissioned a needs assessment study of the legal aid system (online here). The main obstacles at present to efficient delivery, according to the results, include unclear legislation and a poor implementing structure. The system is badly organized and receives inadequate funding. It relies exclusively on private lawyers, appointed ex officio by the investigator or the court by means of a formal request to the Mongolian Advocates Association, which then covers the bill. Payment is minimal and generally slow, and private lawyers sometimes refuse to provide legal aid at all. There is no quality control over legal services rendered. In rural areas, access to justice is further hampered by the unavailability of lawyers.

An overarching deficiency, according to the study, is the lack of any coordinating and monitoring body. The roles of those institutions involved in legal aid delivery—the Ministry of Justice and Home Affairs, the Mongolian Association of Advocates, and the courts—are not clearly defined, and scarce available funds are not used efficiently. The creation of a single institution to manage the entire system is a prerequisite for cost-efficient legal aid in Mongolia.

In February 2003, MFOS organized a National Forum on Access to Justice in cooperation with the Ministry of Justice and Home Affairs in order to launch a debate with stakeholder. Participants included government, private law firms, NGOs and legal clinics on the country’s legal aid shortcomings (Forum recommendations online here). All participants acknowledged the need for reform. The Ministry of Justice and Home Affairs agreed to collaborate with the Mongolian Foundation for Open Society and the Justice Initiative on designing and implementing an improved system.

Objectives
The project’s objective is to assist the government to establish an effective legal aid management and delivery structure, and to ensure that the legal needs of indigenous persons in Mongolia are met at reasonable cost. The project is also exploring the benefits of introducing salaried public defenders, to take a prominent role in urban areas, while private lawyers continue in rural areas, under a unified coordination and management system.

Activities
On October 6, 2003, the Minister of Justice and Home Affairs created a working group to draft recommendations on improving the delivery of legal aid and guidelines for implementing the recommendations already made by the National Access to Justice Forum. The head of the Legal Policy Department of the Ministry of Justice and Home Affairs leads the working group. Other members are from the Capital Court, the Advocates Association, the General Prosecutor’s office, the National Police Agency, and the Ministry of Finance, as well as an academic, a human rights activist and the MFOS Law Program Coordinator.

In December 2003, the Justice Initiative organized a study trip for working group members to visit South Africa, which has a well-organized legal aid management body and has pioneered relatively cost-effective legal aid delivery models that might carry relevant pointers for Mongolia.

A survey will be commissioned to examine the country’s legal aid needs, to create a solid knowledge base for the working group in choosing the most suitable models for delivery and organization, and to estimate the likely costs.

Project partners are in the process of establishing two pilot offices for salaried lawyers (Legal Aid Centers) in the Songinokhairkhan district of Ulaan Bator and in Khentii aimag. A joint project of the Ministry of Justice, the Bar Association and MFOS, the pilot offices have the following goals:

- To provide quality defense to indigent criminally accused in the pilot regions, from the moment of arrest until the end of the case.

- To assist the working group in exploring the benefits of introducing a salaried lawyers’ scheme in the Mongolian context, and to compare this with the current ex officio system in terms of the quality and range of services provided.

- To assist the working group in making recommendations on:

  • standards for measuring the quality of legal aid lawyers’ performance;
  • a payment scheme and criteria for remuneration (i.e, per hour or per case or in some combination);
  • mechanisms to ensure the accountability of legal aid lawyers;
  • how a mixed system of legal aid delivery, involving both salaried public and ex officio private lawyers in criminal cases, might be implemented.

The working group will, by the end of 2004, propose guidelines for a prospective legal aid management body and put forward some possible models for legal aid delivery. The Justice Initiative and MFOS will provide information and other technical assistance to the working group as needed. The project partners are also considering setting up a paralegal scheme in rural areas to provide basic legal advice to the population.

Partners

- Mongolian Foundation for Open Society

- Ministry of Justice and Home Affairs of Mongolia

- Mongolian Advocates Association