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Our law firm in Estonia participated in Study concerning the application of Directive 2003/8/CE of the Council of 27th January, 2003 on legal aid and the judicial conformity of the national transposition measures, organized by the European Commission

3 April 2012
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The final report download at this address:

EU legal aid : www.eulegalaid.org/ftp2/EU-Legal_AID_Finalreport.zip

 

CHAPTER FROM FEASIBILITY STUDY ON AN ONLINE PROCEDURE FOR OBTAINING LEGAL AID: DIFFERENCES IN LEGAL AID POLICY IN THE DIFFERENT MEMBER STATES – ESTONIA

 

Estonia (EE)

On 1 March 2005, the new State Legal Aid Act entered into force in Estonia. The purpose of the law is to ensure the availability of competent legal services to all persons in Estonia. Citizens of foreign states are guaranteed equal procedural rights as Estonian citizens with regard to free legal aid. In addition to court procedure, the law widens the possibility of receiving free legal aid also for pre-trial procedure, procedures carried out by administrative authorities and execution proceedings. It also covers the preparation of legal documents and other legal counselling to a person, or representing a person in another manner. Additionally, Article 37 of the Act provides for the possibility of receiving state legal aid for filing an application to the European Court of Human Rights if the alleged violation has been committed by the Estonian State. Legal aid is directly financed by the State budget and organized by the Bar association of Estonia.

In Estonia the court is the competent authority to grant legal aid in a number of areas. State legal aid system provides lawyer’s services for the least privileged. State legal aid is provided in/for: (i) civil, criminal and administrative proceedings as well as judicial misdemeanour procedure; (ii) pre-trial, execution and administrative proceeding; (iii) preparing legal documentation and other legal counselling or representation.

 

Eligibility criteria

The court assesses the applicant’s financial situation taking into consideration:

-                 Applicant’s personal status  (single, dependent child, spouse or others living with)

-                 his or her assets (disposable capital, rental revenue, Returns on capital, Returns  on transferable securities),

-                 his or her income,

-                 the assets and income of family members who live together with the applicant,

-                 the number of persons maintained by the applicant,

-                 reasonable housing expenses,

-                 and other relevant circumstances shall be taken into consideration,

-                 property belonging to the applicant only in a claim for payment

-                 housing or a necessary vehicle belonging to the applicant which is used daily by him or her and family members who live together with the applicant subject to the number and value of the housing and vehicles equitably correlate to the size, driving needs and income of the family.

-                 employment status

-                 housing conditions ( rent, mortgage)

-                 familly’s assets,

-                 health statuts,

-                 social statuts,

-                 monthly income

-                 taxes

-                 living costs other than housing conditions,

-                 alimony,

-                 debts,

-                 others expenses,

-                 whether the costs of representation might endanger the applicant’s basic subsistence needs

-                Whether the applicant has legal protection insurance

 

The applicant has to provide for documents in regard of his financial situation such as:

-                 Employment contracts;

-                 Lease or rent agreements of place of residence;

-                 Bank statements for the past 6 months;

-                 Certificates proving ownership of capital/property assets : existence or non-existence (Land Book, Vehicles Register e.g.);

-                 Certificates about family members (extracts from birth certificate and marriage register).

 

If an applicant applies for state legal aid in a claim against a family member who lives with him or her, neither the income of the said family member nor assets belonging to him or her shall be taken into consideration upon assessing the financial situation of the applicant :

-                 a notice  from the Tax and Customs Board concerning the income of an applicant and members of his or her family during the last year or a notice concerning the lack of information on the income of an applicant and members of his or her family;

-                 information  from credit institutions.

Other parameters will be taken into consideration depending on the case.  These include without being exhaustive:

-                 Whether the applicant is involved in business dispute,

-                 Whether the applicant ‘s claim is for compensating moral damage,

-                 Whether the required legal assistance probably costs more than two months’ income, of which taxes, mandatory insurance payment and amount needed to perform maintenance obligation have been deducted,

-                 Whether an applicant lacks money to pay for legal services or would not have enough money to cope with the costs of living (e.g. for residence expenses and food – primary residence and car are excluded for the factors taken into account to determine whether a person lack the means to file a legal action) after paying for legal services.

If an applicant fails to submit certified data concerning his or her personal status or financial situation, fails to reply to posed questions or gives incomplete replies, the court shall refuse to grant the person state aid on the basis that the application is not grounded.

If the applicant applies for state legal aid outside the legal procedure (e.g. execution proceedings) and he/she is not a suspect, he will be liable to state fees before the submission of the application (10-15 EUR). Other cases do not require the payment of state fees.

Advocate's law offices also provide explanations without charge regarding the opportunities of state legal aid. It makes sense to apply for state legal assistance if:

-                 an applicant needs legal advice or in-court representation and cannot protect his/her rights by himself (state legal assistance is not provided in case of, for example, business dispute or for compensating moral damage);

-                 required legal assistance probably costs more than your two months’ income, of which taxes, mandatory insurance payment and amount needed to perform maintenance obligation have been deducted;

-                 an applicant lacks money to pay for legal services or would not have enough money to cope with the costs of living (e.g. for residence expenses and food – primary residence and car are excluded for the factors taken into account to determine whether a person lack the means to file a legal action) after paying for legal services.

State legal aid is the provision of legal services to a natural or legal person at the expense of the state. State legal aid is granted to natural or legal persons in connection with proceedings in an Estonian court or administrative authority.

The categories of state legal aid are:

-                 Appointed defence in criminal proceedings;

-                 Representing a person in pre-trial proceedings in a criminal matter and in court;

-                 Representing a person in extra-judicial proceedings in a misdemeanour matter and in court;

-                 Representing a person in pre-trial proceedings in a civil matter and in court;

-                 Representing a person in administrative court proceedings;

-                 Representing a person in administrative proceedings;

-                 Representing a person in execution proceedings;

-                 Preparing legal documents; and

-                 Providing other legal counselling to a person or representing a person in another manner.

 

Legal aid procedures

The legal aid procedures are governed by the Regulation of the Minister of Justice about Bases for Calculation of Fees Payable for Provision of State Legal Aid, Procedure for Payment and Rates of Such Fees, and Extent of and Procedure for Compensation for State Legal Aid Costs.

The application and financial situation report may be submitted personally, by post or by email, and soon signed electronically by Estonian ID Card to the appropriate county court when the applicant lives in Estonia.  The court shall review applications for legal aid, make decisions as to the granting or refusal of legal aid and finally will notify the applicants of such decisions.

If an application is submitted to a court whose jurisdiction does not hold the power of granting state legal aid in the given case, the court shall forward the application immediately to the appropriate jurisdiction and notify the applicant accordingly.

To be granted state legal aid, an applicant should submit a written application and statements on his financial situation (The Financial Situation Form). Such forms are also available at courts and advocate’s law offices. The application must be either in Estonian or in English; those in other languages are not reviewed. Applications for receiving state legal assistance are to be submitted to the court of the applicant’s residence or in the area where he/she wishes to receive legal assistance.

State legal aid means the state pays for the services initially. This does not necessarily mean that the services are free of charge. For instance, upon the designation of legal assistance an applicant may be called to partially finance the costs for legal assistance or pay the costs partially or in full after the termination of court action.

State legal aid is provided by a certified lawyer. The management of a law office shall ensure that explanations concerning the basics and the procedure for being granted state legal aid are provided to persons who need state legal aid during the working hours of the law office and this without charge.

A natural person may receive state legal aid if the person is unable to pay for competent legal services due to his or her financial situation at the time the person is in need of legal aid or is able to pay for legal services but only partially or in instalments or whose financial situation does not allow him/her to meet his basic needs after paying for legal services.

A suspect, who is a natural person, is not required to submit an application to receive state legal aid in criminal matters if the participation of a criminal defence counsel is required and the suspect has not chosen a defence counsel by agreement. Also, in court proceedings regarding misdemeanour matters, a natural person subject to proceedings is not required to submit an application for state legal aid, if the participation of a defence counsel is required and the person has not chosen a defence counsel by agreement

In criminal proceedings, an insolvent legal person who has not chosen a criminal defence counsel by agreement and in such criminal matter that the participation of a criminal defence counsel is required by law or who applies for the participation of a criminal defence counsel may receive state legal aid as a suspect or accused. In a court proceeding regarding a misdemeanour matter, an insolvent legal person who has not chosen a defence counsel by agreement and in such misdemeanour matter the participation of a defence counsel is required by law may receive state legal aid as a person subject to proceedings.

If the applicant is allowed to apply for legal aid by the court, a lawyer is appointed to help the applicant (if an applicant is already having an agreement with a lawyer for the provision of legal aid, the court shall appoint the same lawyer as the provider of legal aid). The Court shall also decide if the applicant should refund the state for the costs of legal aid and/or to which extent he should do so.

Similarly to state legal aid, it is also possible to apply to a court for procedural assistance to cover legal expenses (advocate's fees, state fee, security on cassation, obligation for provision of a security to court, etc.) and exemption from notary fees, as regards general necessary operations, such as certification and annulment of powers, wills and inheritance operations, ownership certificates and other related expenses (for example, inviting a notary to visit a client’s home or medical institution). After having received an invoice from the notary, the legal aid applicant must file a request for legal aid to his county court within ten days.

The Board of the Estonian Bar Association shall pay the state legal aid fee and for the state legal aid costs to the provider of state legal aid who has been appointed by a court, Prosecutor’s Office or investigative body or by the Bar Association.

In connection with the provision of state legal aid, the following costs shall be covered and paid to the lawyer or the management of a law office: (i) travel and accommodation expenses; (ii) translation and interpretation fees; (iii) costs related to submission of evidence.

Only the costs substantiated by expense receipts shall be paid for to the lawyer or the management of a law office, and provided the court, the investigative body or the Prosecutor’s Office can verify the incurred costs by electronic means.

In Estonia, if no document or information is missing in the application, the decision shall be taken within 30 days. If the applicant mentions in the form that the decision should be taken urgently, the court will endeavour to reach a decision as quickly as possible.

Legal aid in cross-border disputes is mainly covered by the same rules as the domestic procedures.  An Estonian citizen or a person staying in Estonia, on the basis of a residence permit who complies with the requirements of State Legal Aid Act, may receive the state legal aid in connection with proceedings regarding his or her civil matter in a court of a member state of the European Union and other body resolving disputes until legal aid is applied to a competent body of the corresponding member state of the European Union.

An application with a view to being granted state legal aid - on the basis of proceedings regarding civil matters before a court of another member state of the European Union and/or any other authority resolving disputes -  shall be submitted to Harju County Court, address: Liivalaia 24, 15034 Tallinn; e-mail: harjumk.info@kohus.ee.

 

Organizations involved in legal aid

Legal aid in Estonia is managed by the Ministry of Justice. It is in charge of the State Legal Aid System for the destitute, which means that it compensates private lawyers who provide legal aid to the poor. There are no special public legal aid lawyers employed by the legal aid offices.

The agencies responsible for dealing with the legal aid applications and appointing the lawyer, who is obliged to work for the poor on a specific case, are county or administrative courts, the investigative bodies or  the Prosecutor’s Offices. The appropriate county court is the Estonian court where the applicant lives. Harju County Court is in charge of granting cross-border legal aid.

The responsible organization for Online Legal Aid System is the Estonian Bar Association.

Legal aid, in the form of legal advice, is also given by some NGOs and other actors of the civil society. This legal aid does not, as a rule, prevent the applicant from getting legal aid through the “official” legal aid scheme.

 

Online legal aid procedure

Although Estonia has not developed an online legal aid application system, the country is at the forefront of technological development with respect to:

-                 In Estonia, a digital ID is in use and most interactions between citizens and the State can be conducted online[1]. Estonia has a project to facilitate the electronic transmission of legal aid applications using the E-ID card

-                 Estonia is partner of the STORK project to adopt a user-centric approach in line with Member States laws on the protection of their citizen’s fundamental rights and ensuring that the user controls the flow of data transmitted.

-                 The E-file project in Estonia.  The E-file application was developed jointly by the Estonian Ministries of Economic Affairs and Communications, Justice, Home Office and Finance.  The objective of the project is to enable parties involved in criminal, civil, administrative and misdemeanour proceedings to access information concerning the status of their case and the decision taken.

-                 Estonian Judicial System Videoconference Network which was released at the end of 2006.  This enables a body conducting proceedings to organize long-distance hearings with witness, suspects and experts in legal proceedings.  .

Estonia is implementing a new system to get the legal aid applications generated electronically to lawyers during criminal proceedings. The applications are generated electronically in the prosecutors’, the police’s or the courts’ information systems and then sent to the lawyers’ information systems. In the future, after the new developments have been implemented, applicants will be using e-ID for authentication to access the electronic application system and e-Signature to sign the submitted application.

The applicant may fill in the legal aid application form through the website AET and send it to the court. He/she is able to see the status of his/her application, whether or not the lawyer is appointed etc. If the court has made ​​a legal aid decision which involves the payment of some charges, it is possible to pay through the online system.

Online information on legal aid is available at the following websites http://www.just.ee/4616 and http://www.juristaitab.ee/. The application forms can be downloaded in PDF and WORD formats and there is an on-going project to implement an online legal aid application and management system since the e-ID card enables citizens to sign and transmit applications online. Contact points providing legal aid can be found at http://www.just.ee/106. However, there is no legal aid calculator, case studies or FAQ.

 

 

For questions, please, contact Valters Gencs, attorney at law at info@gencs.eu


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The material contained here is not to be construed as legal advice or opinion.

© Gencs Valters Law Firm, 2016
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