David Strupek - No system, no concept, insufficient mechanisms: legal aid and Roma in the Czech Republic
07 July 2004
The right to free legal aid is not absolute. The case law of the European Court of Human Rights (ECHR) is usually referred to as the applicable framework when legal defence or representation is necessary. These considerations are driven by the principle of a fair trial and the interests of justice. Relevant criteria are usually the financial abilities of the person applying for aid, the complexity of the case, the possible gravity of the negative result of the case for the applicant (especially in criminal proceedings), and the reasonable prospect of success or some specific circumstances of the background of the case.1
Concepts may differ from country to country, as long as they remain within the framework set down by the European law. The legislature may prefer the liberal concept, encouraging individual responsibility but not providing assistance to socially weak groups, or a more protective concept, more sensitive to the disadvantaged. In such protective systems, it is often argued, the sense of responsibility of the protected may be weakened. Strict regimes may discourage a person from seeking deserved justice, but on the other hand, if access to the legal aid is too easy, the person taking legal action may not feel it necessary to “think twice”. He or she may commence a lawsuit without reasonable prospect of success, or even abuse the legal system for the purpose of troubling or annoying another party.
I am convinced that the liberal concept may work well in a standard democracy. Such a democracy, in my view, is one where checks set in place to limit state power function reasonably effectively, where the principles of a fair trial are a priority, where racial prejudice against ethnic minorities is not excessive in relation to a common standard (at least among the authorities), where civil society — led by non-governmental organizations — is developed and supported enough to help protect the weak. In this respect I am afraid that the Czech Republic is not ready for a liberal concept and must implement protective mechanisms.
A large part of the Romani population in the Czech Republic is socially disadvantaged. At the same time, the Czech Republic does not have adequate framework conceptual law on free legal aid. Mechanisms are set down only in individual procedural codes and in the Act on Advocacy. Below I describe these mechanisms and the problems associated with them, as well as the problems faced by Roma in connection with deficiencies in the provision of legal aid.
In Europe, the framework for free legal aid in criminal proceedings is established by Article 6 paragraph 3(c) of the European Convention on Human Rights. Not even in criminal procedures (the outcome of which can have much more serious consequences for the party than that of a civil lawsuit), is the right to free legal aid absolute. The Convention guarantees free legal aid only in cases in which the interests of justice so require. This criterion is addressed in the comprehensive case law of the ECHR. As such, the provision of professional criminal defence depends among other things on the complexity of the case and the gravity of the penalty that could be imposed. However, the basic principle is that the individual circumstances of every case must be considered, including the economic circumstances of the accused.
The Czech Criminal Procedure Code formally meets the requirements set down in the framework described above. In Section 36, it enumerates cases in which legal defence provided by professional counsel is mandatory (even against the will of the accused): 1. when the accused is detained; 2. where the accused’s legal capacity is limited; 3. where the accused is a minor; 4. where the accused has absconded; 5. where the upper limit of the possible penalty of imprisonment exceeds five years; 6. where extradition proceedings are at issue; 7. where the proceedings concern protective medical treatment imposed by a criminal court in connection with the criminal prosecution. These criteria apply during appeal proceedings as well. The Criminal Procedure Code sets out that in such cases, the interests of justice require legal aid. Apart from these particularly enumerated cases, the law in paragraph 2 of Section 36 provides for the discretion of judges (and state attorneys in preliminary proceedings) in deciding individually if there are other reasons for the mandatory provision of legal defence, especially if there are doubts concerning the ability of the accused to defend himself due to physical or mental disability. The word “especially” — set out in the law itself — indicates that the judge or the state attorney may find reasons for mandatory defence in other cases, according to his own discretion. The Criminal Procedure Code does not provide for free legal aid beyond cases involving mandatory defence.
Practice in the Czech Republic is flawed, however, because the principles of the fair trial are not a priority for authorities. They prefer smooth and speedy proceedings without obstacles so they can score points in the fight against crime. The sense of the principle of a fair trial is stronger among judges dealing with grave accusations, i.e. the judges of the regional courts and the high courts. Proceedings before district courts, and sometimes before the regional courts where the regional court acts as an appellate court2 are usually driven, however, by routine and a lack of real care.
Judges rarely make use of the opportunities provided by Section 36, paragraph 2. They usually appoint defence counsel only in those cases explicitly enumerated by law. And even in these cases, the assistance provided is often far from effective. I know personally a great number of my colleagues provide defence as court appointed counsels with more or less the same effort as for their paying clients. Unfortunately, I regularly experience the contrary: legal defence conducted formally and passively. Often, the advocate does not communicate with his client, does not visit him in custody, does not file for proper remedies, does not raise procedural objections, etc.
One problem is a low sense of ethics in the particular lawyer. Even the best possible legal aid system will not be effective if counsels do not act ethically. If the client complains — a very exceptional case — the Bar Association can take disciplinary measures. The Bar’s monthly bulletin recently published a decision by its disciplinary senate. An attorney was fined for a completely passive performance of an ex officio defence. He had never visited his client in detention to consult on defence strategy, he had never applied for the client’s release, and when the client had applied himself and was refused, he had not appealed against the dismissal. He also failed to inform his client about developments in the case. During disciplinary proceedings, he defended himself with the argument that he had never been asked to visit his client and that he had not filed an application for his client’s release because this would have had no prospect of success due to his client’s rich criminal past. The disciplinary senate found him guilty.3 Although extreme cases of unethical behaviour by attorneys come to light and are punished, many more remain unreported. It is hard to estimate how widespread such cases are. However, I experience them myself from time to time when I conduct research into a case. Also the non-governmental organisations with which I co-operate inform me that they often receive reports of such cases from their clients.
Beyond the problem of the ethics of individual lawyers, however, the system of the appointment of defence lawyers is far from perfect. Actually, there is no system. Judges can choose any attorney from the official list and the lawyer is obliged to accept the appointment. There are no rules governing the choice, so there are attorneys who are appointed regularly, and there are lawyers who wait for their first appointment for years. This approach is widely criticised, not only for not providing opportunities to attorneys interested in the ex officio defence, but mainly because it encourages arbitrary practice by the authorities.
The process of appointment may in some cases be started at the police investigator, who informs the accused of the charge. The following scene is not unusual: The investigator knows his favourite counsel, usually someone co-operative (who may be himself a former investigator or state attorney). The investigator calls him and asks him whether he is available. Then he recommends the lawyer to the accused, who generally has no objections. After that, the investigator calls the court and asks the judge to appoint that lawyer. His request is approved. The counsel arrives shortly thereafter at the Office of Investigation and the authorities may be satisfied, since the accused had counsel right from the first investigation act. If this “friendly” counsel brings no serious objections to the proceedings, he can expect to be appointed again next time. He appreciates this, unless he is a very busy first class attorney, as cases based on appointment may boost his income significantly.
As this “non-system” is convenient for the authorities, the only body that criticises the status quo and brings suggestions and recommendations for change is the Bar Association.4 The Bar’s recommendations are roughly as follows: First, the court should choose a lawyer from a list of interested attorneys only (sometimes a lawyer who has last seen the Criminal Code during the Bar admission exams and does not practice criminal law at all is appointed as counsel in a complicated case. According to the law, he is obliged to accept the appointment). Secondly, cases should be distributed as evenly among lawyers as possible. One system for fair random distribution would simply be to proceed in alphabetical order. These efforts by the Bar, begun in the mid-1990s, have had no visible results so far.
Accused persons of Romani ethnicity are more vulnerable to problematic practices than the majority population. First, an accused person from the socially disadvantaged Romani population is often unable to pay a contracted lawyer. Furthermore, due to the low level of education among the Romani population in general, Roma are often not aware of their rights and thus they can be more easily led along by both the authority and the co-operating “counsel”, who usually recommend that the accused admit everything. The trial itself is then a mere formality. Finally, racial prejudice — usually hidden racial prejudice — against Roma among investigators, state attorneys, judges and other officials — especially police officials — may negatively affect the outcome of criminal procedures.
Unfortunately, racial prejudice is not unusual among attorneys as well. These are often reluctant to “lose face” in front of the judge by a too enthusiastic defence of a Romani defendant. I myself experienced one striking case, I hope, exceptional. I took over the defence of a Romani man during appeal proceedings. The case concerned a fight between a group of Romani men and police officers in the city of Ústí nad Labem. The fight had been evidently started by three drunken Roma who had been slightly struck by a car driven by a white couple. The incident, not too exceptional, quickly became widely reported in the media, as it was one of the events that led the Municipality of Ústí nad Labem to build the world famous wall of Neštemice. To prepare the grounds for the appeal, I went to Ústí nad Labem to look into the court file, especially to see documents concerning the first instance trial. After the trial, the judge had asked the counsels to submit their final speeches in written form. I saw them in the file. One of the counsels (an appointed one, of course) spent two thirds of the paper explaining how the media and some human rights activists had exaggerated the wall issue and the gravity of relations between the Romani and the white majority in Ústí nad Labem. He went on at length to the effect of excusing himself for having had to defend his client in a case so closely watched by media and “abused” by the human rights activists. Only in the last couple of sentences did he deal with the incident itself, stating that his client had somehow mindlessly become involved in the fight. Well, perhaps this kind of final proposal was intended strategically; maybe it even helped his client in the eyes of the judge. I did not like it anyway.
There have been two dramatic changes in the concept of the Czech (previously Czechoslovak) civil procedure. Neither of them has been followed by the requisite changes in the concepts of legal aid.
The first change came after the fall of the Communist regime. The most important issue was that the principle of “material truth” was abandoned and substituted by the principal of “formal truth”. During Communist rule, the proclaimed aim of the civil procedure was to find a just result irrespective of the quality of the procedural steps of the parties. The party favoured by the real factual events of the case and substantial law should have won, no matter whether or not he was passive or submitted insufficient evidence. The court was obliged to inform the parties not only of their procedural rights and obligations, but also about the substantial law. Therefore the party needed a lawyer only if he did not trust the court and wanted a higher standard of legal protection.
A series of amendments in the early 1990s5 brought to the civil procedure the principle according to which every individual is responsible for the way he defends his rights. The court searches for the truth only within the range of the submitted allegations and suggested evidence. The court cannot inform the party about relevant substantial law. A passive or unskilled party may lose, even if the real factual events and substantial law are on his side. The amendment also brought completely new procedural instruments, such as the “default judgement”, under which, if the defendant fails to appear at the first hearing and does not apologise, the facts alleged are accepted, the court decides in favour of the plaintiff, and no appeal is possible.
The second change came into effect on January 1, 2001.6 To solve the widely criticised problem of the extensive length of the civil proceedings, the legislature devised a new institution: the concentrated procedure.7 The parties are now obliged to concentrate all allegations and to present all evidence within a deadline set by court, in some cases the end of the first hearing. After that, parties may only react to a new development and present evidence only with the purpose of rebutting evidence thus far presented. The principle of the full appellation in appeal proceedings is cancelled, which means that all allegations and evidence must be submitted before the court of first instance orally declares judgement. No new allegations may be submitted and no new evidence can be brought in the appeal (with a few exceptions). Default sanctions for delays and non-compliance are harsh and often final. For example, the defendant’s failure to submit his answer to the action may be considered a recognition of the validity of claims, if the judge informs the defendant about the possible result of non-compliance. Also in such a case, the court may render a judgement that cannot be challenged by appeal.
A participant without legal education can hardly enter the proceedings on his own without risking irreversible negative consequences, although these consequences may have no connection with the real factual basis of the case. Nevertheless, since January 1, 2001, there is no significant change concerning free legal aid in a civil lawsuit.
Pursuant to Section 30, paragraph 1 of the Civil Procedure Code, the judge appoints on request a representative for persons who meet the requirements for exemption from court fees. The applicant for exemption receives the form and has to fill in data on his property and income. While the application for exemption from the court fee is frequent, requests for appointment of a representative are rare, and in practice the court rarely grants either. The amendment effective from 2001 brings at least one positive change: the court is obliged to inform the party about the possibility of a court-appointed representative.
There is also the provision of paragraph 2 of Section 30, pursuant to which a judge may appoint an attorney to the party if the defence of his interests so requires. Thus the law formally ensures legal aid where it is an inevitable requirement of the fair trial principle. In this case, contrary to Section 30, paragraph 1, the social situation of the party does not matter. In fact, the judge may use his discretion. In practice, this provision is for the most part ignored.
The amendment effective January 1, 2001, also obliges the judge to appoint an attorney in cases of mandatory representation (such as administrative courts and appeals to the Supreme Court and the Constitutional Court). This is also a welcome change, since until now if the party wanted to lodge an administrative action or an appeal to the Supreme Court, he had to ask the Bar Association to appoint a lawyer for him.
Time will tell whether the amendment to the Civil Procedure Code effective January 1, 2001, will force judges to use Section 30 more frequently. I am afraid that Constitutional Court case-law or a judgement of the European Court of Human Rights, declaring a violation of the fair trial principles, will be necessary for a change in practice. But maybe I am too sceptical. Maybe an internal instruction by the Ministry of Justice would help, because in contrast to criminal proceedings, civil lawsuits run more smoothly and speedily if the parties are represented by lawyers, and judges usually appreciate the participation of the attorneys in the suit.
In both criminal and civil proceedings (and administrative ones as well) participants who are not able to pay a contracted lawyer and do not meet the requirements for judicial appointment (or simply do not succeed in persuading the court to appoint a lawyer) may ask for appointment of an attorney by the Bar Association pursuant to Section 18, paragraph 2 of the Act on Advocacy. It has to be noted that this is the most frequent way of attaining free legal aid in civil lawsuits. This is not the best solution, in my opinion, since the role of lawyers’ professional association in granting legal aid should be rather marginal.
A person applying for legal aid at the Bar has to fill in the Bar’s form and name three attorneys who refused to take the case. Section 18 does not link appointment of an attorney directly to the financial situation of the applicant. The only criterion is that the applicant has not managed to secure a contract with an attorney, for whatever reason. However, the applicant’s financial situation is usually the main reason for the application. As my office is across the street from the Bar’s building, I am regularly visited by people saying: “I do not need your service, just, please, sign here that you reject me.” I usually object that I may take the case. The reaction is: “Well, I won’t pay you.” As I am supposed to consider pro bono work, I generally ask about the complexity of the case and possible expenses. Only then will I sign the rejection. If the majority of my colleagues are similarly reluctant to reject the representation for reasons other than cost, then applicants are very likely most often provided with an attorney by the Bar because they “won’t pay.” I am not sure how deeply the Bar checks the real inability of the applicant to pay for a contracted lawyer.
As far as the Romani population is concerned, in my experience, racial prejudice among civil law judges is lower than among their criminal law colleagues. On the contrary, there is rather strong social sympathy and solidarity, especially in labour or tenancy lawsuits. Nevertheless, Roma may be disadvantaged after the strict procedural rules come into effect in 2001. Mainly as a result of their social situation, they rarely choose a contracted lawyer in common lawsuits. Their general low level of education may cause them not to be able to meet the requirements of the concentrated procedure even after being explicitly informed by a judge about the obligations. If no new law on free legal aid is adopted, I can see one solution in more frequent use of the Section 30 of the Civil Code.
Also, substantial law may affect the situation of disadvantaged groups in the general population. If a new stricter rule demands that a person take legal action to defend his rights, such an amendment should be followed by a change enabling easier access to legal aid. One example: pursuant to the current Civil Code, a landlord has to lodge an action with the court if he wants to terminate a contract with a tenant. When the landlord is obliged to sue, he must also formulate the reason of the termination of contract and to prove that it is founded. This year, a group of deputies proposed an amendment to the law which would reverse the burden of action. If this proposal is adopted as law, the landlord would send the termination to the tenant, including the information that the tenant either has to leave the apartment or to file action within a specified deadline. The tenant would be forced to sue or to leave the flat.
Generally, there is nothing wrong with reversing the burden of legal action from landlords to tenants. However, such a proposal will have consequences. When a socially weak Romani family receives a termination of contract and finds out that they have to sue the landlord they may resign themselves to eviction rather than doing so. My opinion is that liberal substantial law favouring the landlord is not necessarily wrong, but it must be properly balanced by sufficient and effective protection for the socially weaker party, i.e. accessible legal aid. This requirement is not at the moment met.
The Czech Administrative Procedure Code — which is in general wooden, out-of-date, and in desperate need of amendment — has no provision on free legal aid. We may eventually admit that free legal aid in the administrative proceedings is generally beyond the framework set by the case law of the ECHR. The reason for this is that administrative authorities are usually obliged ex officio to inform the party to the proceedings about all rights and obligations and all eventualities, including the substantial law. Courts may sometimes take advantage of negligence in a procedural approach of a party. An administrative authority cannot do that. This is the common standard.
In practice, however, Czech administrative authorities do take advantage of the slightest negligence of the party. The quality of the administrative procedure in the Czech Republic is deeply below common standards. For example, I recently represented in appeal proceedings Ms M.N., a young Romani woman charged with a typical petty offence — night disturbances. She probably was not completely innocent, but the “case” was an obvious plot by the other tenants of the house. The outcome was consequential for her, since if found guilty, the municipality would not extend her lease contract.
The proceedings were initiated after a complaint by one of her neighbours. When the hearing date approached, the neighbour distributed leaflets with the date of the hearing to all the mailboxes in the building, so at the hearing the neighbour was supported by four or five other tenants. They alleged that since Ms M.N. had lived in the house, the house had become disorderly. They also said they had seen strange persons leave her apartment in the morning. After these depositions, the administrative authority found Ms M.N. guilty of night disturbances “caused mainly by her nightly visitors.” The low penalty — admonition — was supposed to motivate her not to appeal. We appealed and the appeal authority had no choice — it quashed the decision and acquitted my client.
In normal conditions, Ms M.N. would not have needed legal aid if the administrative authority had not abused its power so absurdly. However, in this case, without legal aid, she would have been found guilty, her contract would have been terminated, and she would have had to leave her flat.
Roma of Slovak origin in the Czech Republic have similar problems in proceedings to acquire citizenship. After the dissolution of Czechoslovakia, a discriminatory and widely criticised Act on Nationality was adopted. By an amendment of 1999, the legislature tried to minimise the discriminatory consequences of the law. Now, any Slovak national who has at least factually lived in the area of the Czech Republic since the dissolution of the Czechoslovak state in 1993, can receive Czech citizenship by declaration. This amendment has made possible some improvement of the disastrous social situation of the vast number of Slovak Roma living in the Czech Republic.
I have been asked by one non-governmental organisation with which I closely co-operate to help with a number of cases in which administrative authorities have worked out unbelievable grounds to dismiss declarations of citizenship. For example, one District Office rejected such a declaration made by a Slovak Romani woman by stating that she had discontinued her factual stay in the Czech Republic as she had left the country for approximately 14 days to give birth in Slovakia (as a foreigner without official residence, she was not covered by Czech health insurance). Our appeal to the Ministry of Interior was successful, but who knows what the result would have been if legal aid had not been provided with the help of the NGO concerned. Sometimes when I enter proceedings I am presented with deliberately constructed obstacles — even illegal ones — such as the requirement of an official verification of my client’s signature on the power of attorney. It is likely that only a fraction of the Slovak Roma concerned seek the help of NGOs and fewer still go directly to an attorney.
The procedural provisions in respective branches of law (especially criminal and civil) formally comply with the requirements set by the ECHR case-law. However, practice is different. Judges appoint representatives only in the explicitly enumerated cases involving mandatory representation or criminal defence. There is no conceptual law setting mechanisms for access to free legal aid. Lacunae in the field of free legal assistance are partially compensated by the work of the Bar Association, but this cannot be considered satisfactory. In this situation, the Romani population is at a disadvantage as a result of its generally disadvantaged position in Czech society, a generally low level of education, and high levels of racial prejudice among the majority population.
- For the ECHR case-law on legal aid, see e.g. Airey v. Ireland A 32 (1979); Quaranta v. Switzerland A 205 (1991); X v. United Kingdom, 21 D.R. 95. (1980); Munro v. UK No 10594/83, 52 DR 158 (1987); W v. FRG, 45 D.R. 291, 1985.
- In cases in which the lower limit of the possible penalty prescribed by law is five years of imprisonment or higher, and in other exceptional cases explicitly named by law, the Regional Court (Krajský soud) deals with the case as the court of first instance and the High Court (Vrchní soud) as the appellate court. In the rest of the cases, the District Court (Okresní soud) deals with the case in the first instance and the Regional Court as the appellate court (see Section 17 of the Criminal Procedure Code).
- Bulletin advokacie, 10/2000.
- See for example “Report from the Session of the Bar’s Committee for Criminal Law and Criminal Defense” and the letter of the President of the Bar to the Minister of Justice, both in Bulletin advokacie, 8/2000.
- Especially a comprehensive amendment 519/1991 effective from January 1, 1992, and the amendment 171/1993, effective from September 1, 1993.
- Act no. 30/2000.
- Section 114b, Section 118b, Section 118c of the Civil Procedure Code.