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Audit activity the system for granting state-guaranteed legal assistance in the years 2020-2022

  • 28.02.2023
  • 364

The right to legal assistance is an indispensable part of the guarantees offered to man by the state to a fair judicial process and is a right established by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as by the specialized national legal framework, whose harmonization is carried out continuously.

The results of the Compliance Audit Report on the use of public financial resources allocated for the administration of the state-guaranteed legal aid system in the period 2020-2022 were examined today, February 28, during the meeting of the Court of Accounts of the Republic of Moldova (CoARM).

The purpose of the audit was to assess the compliance of the management of the financial means allocated for the provision of qualified legal assistance by the state in 2020-2022, in relation to the provisions of the applicable regulatory framework.

In the field of state-guaranteed legal assistance, the responsibilities rest with the Ministry of Justice, which is responsible for policy promotion; The National Council of Legal Assistance Guaranteed by the State (NCLAGS) which ensures the organization and management of the entire system, the territorial Offices of the Council, which are responsible for administering the process in the territory.

During 2020-2022, in total, 182 thousand cases of state-guaranteed legal assistance were registered, for the financing of which, from the budget, 226.9 million lei were used. The largest number of cases of providing legal services was registered in 2022 - about 64 thousand cases, 92.7 million lei being used.

During the meeting, the most relevant findings presented in the audit report were mentioned. The need to improve the normative framework, which in some places contains legislative gaps, and in other cases admits different interpretations, creates premises that condition the excessive demand for legal services by law enforcement bodies as well as other applicants.

A first situation found is the request for legal assistance for the beneficiary who does not possess or possesses to an insufficient extent the language in which the criminal process is conducted. In this context, citizens who have committed "light" and "less serious" crimes do not have the right to state-guaranteed legal assistance, their incomes will be verified, and only in cases where they do not have financial means, they receive assistance on general principles. However, the legal bodies using the imperfections of the law, in order to include the mentioned cases in the legal aid scheme guaranteed by the state, requested legal services on the grounds that the beneficiaries do not possess the language. Under these conditions, the legal aid of a State Enterprise, persons with public functions, mayors of localities, employees of legal and cadastral bodies, as well as persons who violate traffic rules while intoxicated have become beneficiaries of legal assistance. As a result of the budgetary sources, only in the case of the verified sample were cases identified, for which expenses were incurred in the amount of 14.9 million lei.

Another legal provision and customary practice explained by the Supreme Court of Justice denotes that only the prosecutor or the court has the right to request legal assistance in cases where "the interests of justice require the participation of the lawyer in the court session in the first instance, in the appeal and in the appeal, as well as in the trial of the case by way of extraordinary appeal".

The audit checks show that the territorial offices, contrary to the stated norm, granted legal assistance at the request of the criminal investigation officers within the structures subordinate to the Ministry of Internal Affairs without having the orders of the prosecutors. As a result, non-compliant expenses were incurred in the amount of 233.1 thousand lei.

Also, the audit mentioned that the managers of the territorial offices, when granting the legal assistance guaranteed by the state depending on the income level of the beneficiaries, did not fully comply with the pre-established norms, not having required and attached to the application the mandatory certificates, based on which the eligibility of the beneficiary is established, such as the income statement, the family composition certificate and the certificate confirming the income obtained from agricultural and livestock production.

Another deviation was found in the case of offering legal assistance to insolvent economic agents, despite the fact that they had designated persons who managed their legal aspects and did not require the services of lawyers to represent them. In this context, we exemplify the case found when legal assistance was granted to an economic agent who was charged with the crime of "tax evasion" and who was managed by the insolvency administrator.

NCLAGS and the Territorial Offices have instituted some internal control activities in order to ensure the compliance of expenses for the remuneration of qualified legal assistance provided by lawyers, but these are only partially functional for certain operational activities, which causes the appearance of non-compliances and reduces the good management of public money.

NCLAGS did not ensure the regulation of the workload in the case of lawyers contracted to provide qualified legal services on demand. The most uneven practices are attested at the territorial office in Comrat where, in the case of 10 lawyers, not a single file was distributed, and, on the other hand, 472 files were distributed to another lawyer. Similar situations can be seen in other territorial offices.

There are cases of unjustified acquittal by the Chisinau Territorial Office of actions reported by lawyers regarding their meetings with the beneficiary who is in detention. In this sense, it was found that in the case of 4 lawyers, there are no entries in the Penitentiary Registers regarding 5 visits made, although their cost was paid from budgetary sources.

The existence of institutional weaknesses, both in the process of monitoring the quality of legal assistance provided by lawyers, and in the application of the reimbursement mechanism for the expenses related to the legal assistance provided, determined the malfunctioning of these processes. The audit found cases of non-identification and non-implementation of measures to collect legal assistance costs liable to recovery to the budget. The selective audit checks revealed that the said irregularity is a systemic one, identified in 10% of the checked sample, which amounts to 32 thousand lei.

The organizational structure of the entities responsible for the administration of the state-guaranteed legal aid process is a diffuse one, with uncertainties regarding their legal status and positioning, the role and responsibilities assigned, including in the processes of planning, management and reporting of budgetary means.

In the end, the Court of Accounts found that the administrative bodies of the state-guaranteed legal aid system in the period 2020-2022 have taken some measures in order to make appropriate use of the allocated budgetary means, however, despite the efforts made by the management of the institutions, the presence of deficiencies and irregularities related to the administration of the state-guaranteed assistance system is attested.

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