Questionnaire on legal aid
Conference in Palermo on 12th and 13th November 2009
I./ Procedural aspects
1./ Who decides whether legal aid is granted to a party?
Granting legal aid in administrative disputes is done according to the Legal Aid Act and the provisions of the Code of Civil Procedure applicable on a subsidiary basis to administrative litigation under the Article 144 of the Administrative Procedure Code.
A party in a dispute, applying for legal aid, shall submit an application in writing to the court wherebefore the case is pending. The court shall issue a ruling whereby the application is granted and shall specify the type and scope of the legal aid granted or shall refuse legal aid.
2./ Is it possible to challenge this decision?
The ruling of the court whereby legal aid is granted is not subject to appeal.
The ruling whereby legal aid is refused shall be appealable by an interlocutory appeal and the ruling of the court on the interlocutory appeal shall be final.
3./ Is it possible to obtain legal aid already during the administrative procedure?
There is no obstacle at every stage of the court proceedings upon the grounds for granting legal aid a party to submit an application to the court and respectively the court to grant legal aid to the party.
4./ Is legal aid valid for the whole procedure, legal remedies included or is decided separately for each level of the law suit?
Granting legal aid is valid for the entire court procedure as the ruling on the grant of legal aid shall have effect as from the submission of the application, unless the court decrees otherwise. In regard to the validity of the legal aid granted also the cases of termination of legal aid (upon change of the circumstances on the grounds of which it has been granted) and deprivation of legal aid (if it is established that the conditions for the grant of the said aid did not exist at all or in part) should be taken into account.
5./ Do applications for legal aid have any impact on the course of the procedure, in particular on the run out of time limits (f.e. for legal remedies)?
The time limit for intermediate appellate review, for cassation appellate review and for interlocutory appeal shall be interrupted by the submission of an application for legal aid and shall not run while the said application is considered. Interruption of time limits occurs also in the cases of the said application as regards the terms of submitting an answer to the appeal, cassation appeal or the interlocutory appeal (Article 259, Para 2, Article 263, Para 1, Article 275, Para 2, Article 283 and Article 287, Para 1 of the Code of Civil Procedure).
II./ Prerequisites for legal aid
1./ Financial means
The court shall issue a ruling for grant of legal aid while taking into consideration: the income accruing to the person or the family; the property status, as certified by a declaration; the family situation; the health status; the employment status; the age and other circumstances ascertained.
a./ Are there thresholds concerning income ruled by law or by court practice?
There are no such thresholds. The consideration of the court is based upon the standard of living in the country.
b./ Are there also such thresholds for real estates and other values?
The possession of real estates or other values can give reasons to the court to refuse legal aid.
c./ Are there special rules for legal entities (societies, associations)?
Legal aid shall be granted to natural persons only (Article 5 of the Legal Aid Act).
2./ Is the possible outcome of the case of relevance for granting legal aid?
Legal aid of the type “representation in court by legal counsel” shall not be granted where the granting of legal aid is not justified in terms of the benefit that such aid would confer on the applicant for legal aid; where the claim is manifestly unfounded, unjustified, or inadmissible; in the cases of commercial matters and tax matters under the Tax and Social Insurance Procedure Code (Article 24 of the Legal Aid Act).
3./ Are there other criteria for granting or refusing legal aid?
The criteria are cited in section II.1.
1./ What kinds of costs are covered by legal aid?
Legal aid shall consist in ensuring defence by legal counsel free of charge.
Expenses for defence by legal counsel are covered, where according to Article 21 of the Legal Aid Act the types of legal aid are: pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings or to bringing a case before a court; preparation of documents for bringing a case before a court; representation in court by legal counsel and representation upon detention under Article 63 (1) of the Ministry of Interior Act.
a./ Court fees
The conditions under which the court relieves a party upon submission of petition for waiver from depositing court fees and costs of the proceedings are set in Article 83, Para 2 of the Code of Civil Procedure, applied on a subsidiary basis in administrative cases. Waiver of court fees and costs of the proceedings is not legal aid in the sense of the Legal Aid Act; it is done by the procedure and the conditions in the Code of Civil Procedure, which are different of those of the Legal Aid Act.
According to Article 83, Para 2 of the Code of Civil Procedure fees and costs of the proceedings shall not be deposited by any natural persons who have been found by the court to lack sufficient means to pay the said fees and costs. Considering the petition for waiver, the court shall take into consideration the income accruing to the person and to the family thereof; the property status, as certified by a declaration; the family situation; the health status; the employment status; the age and other circumstances ascertained.
According to Article 83, Para 3 of the Code of Civil Procedure in the cases of waiver from paying fees and costs, the costs of the proceedings shall be paid from the amounts allocated under the budget of the court.
b./ Costs of witnesses, interpreters and experts
Article 83 of the Code of Civil Procedure (cited above) is applied in regard to costs of witnesses, interpreters and experts. The Legal Aid Act is inapplicable to these costs.
c./ The party’s travel expenses
The party’s travel expenses are not covered by the legal aid.
d./ Advocates or other representatives
Representation in court by legal counsel is covered by the legal aid and is regulated by the Legal Aid Act.
d.a./ Under which conditions are advocates or other representatives at the disposal of the beneficiary in order to represent him in the lawsuit?
In civil and administrative matters, legal aid shall be granted in the cases where, on the basis of evidence presented by the relevant competent authorities, the court determines that the party is unable to pay for the assistance of a lawyer. To arrive at such determination, the court shall take into consideration the income accruing to the person or the family; the property status, as certified by a declaration; the family situation; the health status; the employment status; the age and other circumstances ascertained.
d.b./ How are these advocates or other representatives selected? Has the party any influence in this selection procedure?
In the cases of representation in court by legal counsel, the decision to grant legal aid shall be made by the authority directing the procedural acts (the court), at the request of the person concerned or by virtue of the law (Article 25 of the Legal Aid Act). In the cases of legal aid of the types “pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings or to bringing a case before a court” and “preparation of documents for bringing a case before a court” the decision to grant legal aid shall be made by the Chairperson of the National Legal Aid Office.
The instrument on granting of legal aid shall be transmitted forthwith to the relevant Bar Council for designation of a lawyer entered in the National Legal Aid Register.
If practicable, the Bar Council shall designate a lawyer named by the person whereto legal aid is granted.
The Bar Council shall notify the authority directing the procedural acts (the court) or the Chairperson of the National Legal Aid Office of the designated lawyer. The authorities mentioned shall appoint the designated lawyer as mandatary, defence counsel or special procedural representative for courts of all instances, unless an objection to this has been raised. The appointed lawyer may delegate the authority to another lawyer entered in the National Legal Aid Register. In exceptional cases, where qualified assistance of a lawyer in a particular case cannot be provided, the Bar Council may designate a lawyer from another geographical jurisdiction with the consent of the said lawyer. The appointed mandatary, defence counsel or special procedural representative may be replaced at the request of the authority directing the procedural acts (the court) or the Chairperson of the National Legal Aid Office according to the procedure of the appointment thereof.
d.c./ Who covers the costs for these advocates or other representatives?
The resources for legal aid by a legal counsel are provided by the executive budget.
Legal aid is organized by the National Legal Aid Office and the Bar Councils.
The National Legal Aid Office has a separate budget, which is prepared, implemented, balanced off and reported by the said Office and which covers the payment for the legal aid granted.
Payment for the legal aid provided shall be effected by the National Legal Aid Office by means of bank transfer on the basis of the timesheet of the lawyer, completed in a standard form endorsed by the National Legal Aid Office.
e./ Has legal aid an influence on the obligation of the beneficiary to refund certain expenses of opposing parties if he finally looses the case?
In case of unfavourable solution to the dispute the party granted legal aid owes payment of fees and costs to the other party of the dispute on an equal footing.
IV./ Can legal aid be revoked?
The Code of Civil Procedure provides the conditions of termination and deprivation of legal aid.
1./ Under which conditions is it possible to revoke legal aid?
The court shall apprise the parties of their legitimate rights and obligations in connection with legal aid, as well as of the legal consequences upon failure to comply with the obligations thereof.
The person whereto legal aid has been granted is obligated to notify forthwith the court of any intervening change in the circumstances which render the said person eligible for the granting of the aid. The court may terminate the said aid as from the time of occurrence of the change. In case the person fails to notify promptly the change in circumstances the said person shall reimburse the National Legal Aid Office for any costs incurred as from the time of the said change. The receivable shall be collected according to the procedure established by the Tax and Social Insurance Procedure Code.
According to the provisions in the Code of Civil Procedure legal aid shall be terminated upon change of the circumstances on the grounds of which the said aid has been granted or by the death of the natural person whereto the said aid has been granted. The court, acting either ex officio or on a motion by a party or by the assigned counsel, shall decree termination in whole or in part of the legal aid granted, effective from the time of occurrence of a change in the circumstances which justified the grant of the said aid.
2./ Can it be revoked even retroactively and can recovery of the state’s expenses be ordered? Which are the conditions for such a decision?
According to Article 97 of the Code of Civil Procedure the court, acting either ex officio or on a motion by a party or by the assigned counsel, can deprive the party of legal aid in whole or in part if it is established that the conditions for the grant of the said aid did not exist at all or in part. In the case mentioned, the party shall be obligated to deposit or to restore all amounts from the payment of which the said party has been groundlessly exempted, as well as to pay the fee to the counsel assigned thereto.
Consequences of termination and deprivation of legal aid are that the assigned counsel exercises the powers thereof until the entry into effect of the ruling on termination or on deprivation of legal aid, if this is necessary to safeguard the party against adverse legal consequences.
The time limits for appellate review shall be interrupted as from the rendition and until the entry into effect of the ruling on termination or on deprivation of legal aid and shall commence anew thereafter.
3./ Are there time limits for such decisions?
The ruling of the court on termination or on deprivation of legal aid can be rendered any time while the case is pending.
V./ Practical importance of legal aid
1./ What is the percentage of cases with legal aid in general?
2./ Are there any scopes of administrative law where legal aid is of special importance? What is the percentage of cases with legal aid in these particular fields of administrative law?
The most sensitive fields of administrative law where legal aid is granted are the social and retirement insurance administrative cases and those of the status of foreigners in the Republic of Bulgaria, the issues of their residence and measures of administrative compulsion imposed on them.
In 2008 the judges of the Supreme Administrative Court have finished 15 095 administrative cases and the judges of the 28 regional administrative courts – 32 451 administrative cases. The total number of the finished administrative cases in 2008 is 47 546.
By data of the National Legal Aid Office for the period September 2008 – September 2009 legal aid was granted in 1006 administrative cases.