Experts in the field find that, so far, the justice sector has been reformed at a snail’s pace. The most consistent results have been registered in practical areas, such as state-guaranteed legal aid. How it works in practice, i.e. who, when and how can benefit from such services as well as who provides them and in what situations, we find out from Sergiu Chiruța, coordinator of the Chișinău Territorial Office of the National Council for State Guaranteed Legal Aid (CNAJGS). This is the largest of the four existing offices throughout Moldova, which coordinates providers and legal aid services paid from public money. To give an example with figures, Chișinău Office is responsible for 17 districts and the work of over 320 lawyers on request, 24 paralegals and 8 public lawyers. For comparison, the smallest territorial office would be the one in Cahul, with 3 districts, 24 lawyers on request, 8 paralegals and 2 public lawyers.
Sergiu Chiruța: “We should note that state-guaranteed legal aid is the provision of legal services from the state budget to persons who do not have sufficient means to pay for such services as well as when expressly provided so by the law, when state-guaranteed legal aid is mandatory and it is free. We currently have primary legal aid and qualified legal aid. Primary legal aid is provided to all people in Moldova regardless of their income. It consists of consultations on legal issues, assistance with drafting legal acts and other forms of assistance that do not fall into the category of qualified legal assistance. Regarding the service providers that are currently empowered under the law on state-guaranteed legal aid to provide primary legal aid services, first and foremost, we can list the paralegals, civic associations and public lawyers. We also have the specialized paralegals who are currently working on a pilot project, so that to identify the paralegals specialized in primary legal assistance services to people from certain socially vulnerable groups. The paralegals are taken from those groups, are trained by the state-guaranteed legal aid system, are prepared, and then their purpose is to provide primary legal aid to people of these socially vulnerable groups. Speaking about qualified legal aid, we, again, have two types, ordinary qualified legal aid and qualified emergency legal aid. Ordinary legal assistance, again, can be divided into two types, depending on the person’s income and regardless of the person’s income. What does qualified legal aid entail? This is the defense of the interests of a suspect/accused/defendant and the defense and representation of the convict’s interests in a criminal trial, or, as applicable, the defense of the interests of persons in a civil, misdemeanor or administrative litigation. If speaking about ordinary qualified legal aid regardless of the person’s income, we should note that we have a series of cases expressly provided in the law on state-guaranteed legal aid. It is an exhaustive list of situations when the state provides legal assistance regardless of the income of the person who seeks such services.
Cu DREPTul: Can you list a few situations?
Sergiu Chiruța: “Criminal cases in which minors are involved, or when the suspect/ accused/defendant has difficulty defending himself due to some kind of disability, or when the suspect/accused/defendant is in military service, or when the person is under arrest, when the injured party is provided with a lawyer, the state considers that the suspect/accused/defendant can also benefit from the services of a state-guaranteed lawyer. These are not the only situations, it’s about 30 of them, if adding them up from the legal provisions on when the state provides legal services in criminal cases.”
Cu DREPTul: Which ones are the most frequently requested?
Sergiu Chiruța: “When the suspect/accused/defendant is accused of a serious crime, a particularly severe or exceptionally severe one, when the person is under arrest, when the procedural capacity of a suspect/accused/defendant is held, for example, by a minor. If we take the margin, in percentage, I think that around 50% are the situations when legal aid is mandatory, when we do not perform the income test, and the remaining 50% are the cases when we are required to perform the income test to make a decision on whether to provide the person with a state-guaranteed lawyer or not.”
Cu DREPTul: But for those categories listed, including those categories, does it mean, in practice, that they are automatically offered a defender or do they have to request it?
Sergiu Chiruța: “For mandatory state-guaranteed legal aid, the procedure for applying for a state-guaranteed lawyer is a simplified one. In such situations, legal aid is granted regardless of the person’s income, it is not necessary or mandatory for the beneficiary to submit an application to the territorial office, as it is done either by the criminal investigation body investigating the case or the Prosecutor’s Office, as appropriate, or the courts directly, but this does not exclude the possibility for the beneficiary to go directly to the territorial offices to request state-guaranteed legal aid. To some extent, the state has eased the situation of the beneficiaries, in this case, because the body investigating the case makes this request on its behalf to the territorial offices. Within one day of receiving the request from the appropriate institution, it is required to issue a decision appointing a lawyer and to inform the parties involved in the process, and at the request of the beneficiary, he/she is also informed in writing about such a designation.”
Cu DREPTul: Does it mean, in practical terms, that everyone who needs it and cannot afford it really benefits?
Sergiu Chiruța: “All those who fall under those legal provisions in which the state has decided that the assistance is mandatory benefit from the legal assistance guaranteed by the state. If speaking about situations when a person is involved in a criminal case and also has a civil case, and it is not expressly provided that free legal aid is provided for such cases, too, then he must go through another procedure. The request can be made directly by the beneficiary to the territorial offices, or, if applicable, he can submit a request to the criminal investigation body, or to the court and request state-guaranteed legal aid. Those institutions, upon receiving such a request, make a request or forward them to the territorial office. The territorial office, upon receipt, finding that the legal basis for designation is the lack of financial resources, proceeds to making the beneficiary’s income test.”
Cu DREPTul: What does emergency legal aid imply and when is it provided?
Sergiu Chiruța: “Any person detained in a criminal trial is to be provided with compulsory emergency legal aid as well as in a contravention procedure for the entire period of the person’s detention. Emergency legal aid is also granted to the suspect/accused/defendant in the examination of the request for applying pretrial arrest if they do not have a lawyer or the notified defender has not appeared at the examination of this request; to any person in the contravention procedure, where the body, the person in charge who made the apprehension requests the court to apply the administrative sanction in the form of an administrative arrest. And, more recently, we have had situations when this category of state-guaranteed legal aid has been used for cases when requests are submitted for the application of protection measures under Article 215 of the Code of Criminal Procedure, complaints about domestic violence or sex crimes, and when a lawyer must be granted within three hours from the request.
Emergency legal assistance is provided to all citizens of the Republic of Moldova, regardless of the person’s income, and to foreign citizens and stateless persons in all cases falling within the competence of the public administration authority and the courts of the Republic of Moldova. Emergency assistance is provided in a criminal trial throughout the detention of the person, until the moment of release, either upon issue of a ruling on application of the preventive measure of arrest, or in case of waiver of defense under the Code of Criminal Procedure. Emergency assistance is provided by the lawyers on duty registered in the lists of lawyers on duty, according to a schedule, approved by the coordinator of the territorial office. Every month, for each district or sector within Chișinău municipality, a schedule of lawyers on duty is approved. This schedule includes a list of lawyers who have indicated their willingness to participate in these types of proceedings, apprehensions or application of arrest warrants. The schedule is published on CNAJGS’ website at least three days after the end of the month for the following month, in order to be made public. The schedule works from 8 a.m. to 8 a.m. next day, even on holidays or on weekends.”
Cu DREPTul: In how many cases is the service of a lawyer refused, at the beginning or in the course?
Sergiu Chiruța: “Since we started that project with the Electronic Government Agency and obtained the M access portal, the number of refusals has increased. If looking at the number, Chișinău Territorial Office can have about 400-500 refusals, out of 28-30 thousand requests, during one year.”
Cu DREPTul: How do you explain this?
Sergiu Chiruța: “The vast majority of refusals occur when people apply for state-guaranteed legal aid but have sufficient income to hire a paid lawyer. These are the majority of situations; they are not refusals that would violate the rights of the beneficiaries to defense.”
Cu DREPTul: Can one choose their lawyer?
Sergiu Chiruța: “There is an express provision in the law and in the work regulations of the territorial offices, which says the beneficiaries are entitled to look at the list of lawyers who provide state-guaranteed legal aid services and to indicate a specific lawyer. In such situations, the coordinator is not required to appoint that specific lawyer and can only satisfy the beneficiary’s request after speaking with the lawyer about the request and taking into account his involvement in other cases. We have cases when the beneficiaries ask certain lawyers to represent them. Sometimes we even show them the list of all lawyers who have a contract with the Chișinău Territorial Office for them to select a certain lawyer where they may have doubts about the quality of services provided by all lawyers in the state-guaranteed legal aid system or only by certain lawyers. Hence, we come forward to meet the claim and do this. It is not a problem for the beneficiaries to indicate it in their requests, especially since the request for assistance contains an express column “request a specific lawyer to represent your interests.”
Cu DREPTul: What do you pay attention to in a filed application for assistance?
Sergiu Chiruța: “First and foremost, to the legal basis of appointment, if there is a mandatory basis for appointment. If not, the income test is performed. As a result, either a decision appointing the lawyer or a refusal decision is issued. Secondly, attention is drawn to the type of case – criminal, civil, or misdemeanor. To the institution handling the case – we are talking about the police station, the prosecutor’s office or the court, the court of appeal, the region where the request comes from and if another lawyer has previously participated on this case, either on a contract basis or appointed by the office, to observe the principle of continuity in the provision of state-guaranteed legal aid services. And finally yet importantly, the date, time, place of the procedural action to take place. These are the main elements. This priority information is also found in the appointment decisions, which are subsequently received, as I said, based on the principle of interoperability, by the applicant, i.e. the prosecuting officer, the prosecutor or the judge, including the lawyer already appointed on this case.”
This text is an excerpt from the CuDREPTul podcast. The full version, audio and text, exists only in Romanian.