State Legal Aid information system (Riigi Õigusabi Infosüsteem – RIS):
telephones +372 697 9090, +372 697 9091
E-mail: ris@advokatuur.ee
http://www.riigioigusabi.ee
Why do we need state legal aid?
What is state legal aid?
Who is entitled to receive state legal aid?
How to receive state legal aid?
What is taken into consideration in deciding on the grant of state legal aid?
What to do when the court refuses to grant state legal aid?
What is the procedure for appointing the provider of state legal aid?
Is the provision of state legal aid free of charge?
Is it possible to change the provider of state legal aid?
Why do we need state legal aid?
According to the rule of law, people are subject to many rules and standards established for protecting their rights and interests. However, it often happens that without legal knowledge in specific area one may have hard time in executing one’s rights. Thus it is crucial to ensure availability of competent and reliable legal counselling to all persons. Many people cannot afford an advocate due to their financial situation. In order to ensure the protection of rights and interests of people regardless of their financial situation, a law has been established for provision of state legal aid to people at the expense of the state.
What is state legal aid?
State legal aid is the provision of legal services to a person at the expense of the state. State legal aid means that an advocate appointed by the Estonian Bar Association shall represent and provide counselling to the person participating in legal proceedings (criminal proceedings, misdemeanour proceedings, civil proceedings, administrative court proceedings, administrative proceedings, enforcement proceedings).
In addition to the provision of state legal aid in connection with proceedings in an Estonian court or administrative authority, an Estonian citizen or a person staying in Estonia on the basis of a residence permit has the right to apply for state legal aid (including translation assistance) in connection with proceedings regarding a civil matter in a court of another member state of the European Union, and for having recourse to European Court of Human Rights.
Who is entitled to receive state legal aid?
The criteria for receiving state legal aid depend on the type of proceedings where legal aid is applied for.
In certain cases a person may receive state legal aid regardless of his or her financial situation (it means that the right of such person to receive state legal aid does not depend on the person’s financial ability to pay for legal services):
a) in criminal proceedings, a suspect or accused who is a natural person (it means that the person is suspected or accused in commission of a criminal offence) has the right to the appointment of a criminal defence counsel both in pre-trial proceedings (during preliminary investigation) and in court;
b) in misdemeanour proceedings, a person subject to proceedings who is a natural person (it means that the state requests imposing the punishment on the person for commission of a misdemeanour) has the right to the appointment of a defence counsel in court, if the person subject to proceedings is 14 to 18 years of age or is unable to represent himself or herself due to a mental disorder;
c) in surrender proceedings and extradition proceedings, a natural person subject to surrender or extradition to another state has, as of his or her arrest, the right to the appointment of a counsel.
In all other proceedings, 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 only partially or in instalments or whose financial situation does not allow meeting basic subsistence needs after paying for legal services.
In certain cases, legal persons (i.e. companies, non-profit associations and foundations) may receive state legal aid). Such cases include:
a) a non-profit association or foundation which is entered in the list of non-profit associations or foundations benefiting from income tax incentives or is equal thereto, which is insolvent and applies for state legal aid in the field of environmental protection or consumer protection, or there is other predominant public interest for the grant of state legal aid to prevent possible damage to the rights of a large number of people which are protected by law;
b) an insolvent legal person who is a suspect or accused in criminal proceedings.
How to receive state legal aid?
1. State legal aid without submission of application
In proceedings, where the participation of a counsel is required by law, a person does not have to do anything to receive state legal aid (except in case where he or she has employed an advocate himself or herself) – the official conducting the proceedings is required to arrange the appointment of advocate for the person and submission of application by such person is unnecessary. The participation of a counsel in a court proceeding is mandatory in the following cases:
a) participation of criminal defence counsel in criminal proceedings shall be mandatory during entire proceeding (it means both in pre-trial investigation and court hearing of the matter) if, at the time of commission of the criminal offence, the person being defended was a minor; due to his or her mental or physical disability, the person is unable to defend himself or herself or if defence is complicated due to such disability; the person is suspected or accused of a criminal offence for which life imprisonment may be imposed; the interests of the person are in conflict with the interests of another person who has a counsel; the person has been under arrest for at least six months; proceedings are conducted in the criminal matter pursuant to expedited procedure;
b) in criminal proceedings as of the examination of a criminal file (that means after the completion of pre-trial proceedings);
c) in court proceedings regarding a criminal matter;
d) in surrender proceedings or extradition proceedings to another country as of the arrest of the person;
e) in court proceedings regarding a misdemeanour matter, if the person subject to proceedings is 14 to 18 years of age or is unable to represent himself or herself due to a mental disorder.
2. Application for state legal aid
In most cases an application shall be submitted in order to receive state legal aid. The form of an application is accessible at the web page of the Ministry of Justice as well as in each court and advocate’s law office.
In criminal proceedings, an application for the appointment of a criminal defence counsel submitted by a suspect who is a natural person is not required to set out all information requested in the form; in such case it is necessary to set out only the information on the applicant, the language in which the applicant is able to communicate with the provider of state legal aid, and a reference to the criminal matter in which participation of the criminal defence counsel is requested.
An application for state legal aid is generally submitted to the court. The court to which the application has to be submitted is specified as follows:
a) An application for state legal aid in court proceedings as a party to a proceeding in civil, administrative or misdemeanour matters shall be submitted to the court conducting proceedings in the matter or the court whose jurisdiction would include conducting proceedings in the matter.
b) An application for state legal aid in preparation of statement of claim, application in proceedings on petition or action in administrative proceedings or misdemeanour proceedings shall be submitted to the court whose jurisdiction would include court hearing of the statement of claim, application in proceedings on petition or action.
c) An application for state legal aid in the form of representation in pre-trial proceedings in a civil matter, in administrative proceedings or extrajudicial proceedings in a misdemeanour matter, preparation of a legal document or other legal counselling or representation shall be submitted to the county court of the applicant’s residence or seat of the presumed location of provision of legal services. If an applicant for state legal aid has no residence in Estonia, he or she may submit an application to the county court in the territorial jurisdiction of which he or she is staying.
d) If a person applies for state legal aid as a victim in criminal proceedings, a civil defendant or a third party, the court conducting the proceedings or, in pre-trial proceedings in a criminal matter, the county court whose jurisdiction would include conducting.
e) If a person applies for state legal aid for review procedure, the Supreme Court shall decide on the provision of state legal aid to the person.
f) An application for state legal aid in the form of representation in enforcement proceedings shall be submitted to the court competent to process an appeal against the activities of a bailiff conducting enforcement proceedings.
An application for state legal aid shall be submitted to an investigative body or a Prosecutor’s Office, if the person is a suspect in a criminal matter where the participation of a counsel is not mandatory.
An application for state legal aid shall be submitted in Estonian. An application may also be submitted in English if legal aid is applied for by a natural person who has residence in another Member State of the European Union, is a citizen of another Member State of the European Union, or is a legal person whose seat is in another Member State of the European Union.
An applicant who is a natural person shall append a notice concerning his or her financial situation which is signed by the applicant and, if possible, other evidence pertaining to his or her financial situation to an application for state legal aid. A suspect in criminal proceeding who applies for the appointment of a criminal defence counsel need not append a notice concerning his or her financial situation.
If a person’s residence is not in Estonia, he or she shall append a notice concerning the income of the person and members of his or her family during the last three years from the competent authorities of the person’s state of residence to an application. If the notice cannot be submitted for reasons independent of the applicant, the grant of state legal aid may be decided without the notice.
The standard form of the notice concerning the financial situation shall be accessible at the web page of the Ministry of Justice as well as in each court and advocate’s law office.
What is taken into consideration in deciding on the grant of state legal aid?
The court or investigative body or Prosecutor’s Office deciding on the grant of state legal aid shall first analyse whether the person has the right to receive state legal aid. In cases where the grant of state legal aid depends on the financial situation of the person, the financial situation of the applicant shall be assessed, including his or her assets and income and 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.
State legal aid shall not be granted in the following cases (the list below is not applicable if state legal aid is applied for by a suspect or accused in criminal proceedings):
1) the applicant is able to protect his or her rights himself or herself;
2) the applicant cannot have the right for the protection of which he or she is applying for state legal aid;
3) the applicant could bear the costs of legal services out of his or her existing property which can be sold without any major difficulties;
4) the costs of legal services do not, presumably, exceed twice the applicant’s average monthly income calculated on the basis of the average monthly income of the last four months preceding the submission of the application, from which taxes and compulsory insurance payments, amounts prescribed to fulfil a maintenance obligation arising from law and also reasonable housing and transport costs have been deducted;
5) the possibility of the applicant to protect his or her rights is clearly unlikely due to the circumstances;
6) state legal aid is applied for in order to file a claim for compensation for non-proprietary damage and there is no predominant public interest regarding the matter;
7) the dispute is related to the business activities of the applicant and does not damage his or her rights which are unrelated to his or her business activities;
8) state legal aid is applied for to protect a trade mark, patent, utility model, industrial design or a layout-design of integrated circuits or another form of intellectual property, except rights arising from the Copyright Act;
9) state legal aid is applied for in a matter in which the applicant clearly has joint interests with a person who is not entitled to receive state legal aid;
10) state legal aid is applied for to protect a right transferred to the applicant and there is reason to believe that the right was transferred to the applicant in order to receive state legal aid;
11) the provision of legal services is guaranteed for the applicant by a legal expenses insurance contract or on the basis of compulsory insurance;
12) the profit possibly received by the applicant upon adjudication of the matter is unreasonably small in comparison to the estimated cost of legal aid borne by the state.
State legal aid shall also not be granted for review procedure if the grounds for review are not indicated in the application for state legal aid or if, based on the grounds for review indicated, it is evident that the applicant has obviously few opportunities to protect his or her rights or, if the term for submission of a petition for review has expired. The Supreme Court need not justify its refusal to grant state legal aid.
What to do when the court refuses to grant state legal aid?
The refusal to grant state legal aid shall be formalised by a court ruling. Appeals may be filed against a ruling on refusal to grant state legal aid pursuant to the procedure provided by Acts regulating court proceedings.
What is the procedure for appointing the provider of state legal aid?
The Estonian Bar Association shall appoint an advocate who provides state legal aid upon receipt of an application from a court, Prosecutor’s Office or investigative body. In general, a person cannot choose the provider of state legal aid. However, a person has the right to apply for the provision of state legal aid by a particular advocate, if such advocate has granted his or her consent regarding provision of state legal aid to the applicant. In that case the name of the advocate who has granted his or her consent shall immediately be indicated in the application for state legal aid.
A court, Prosecutor’s Office or investigative body does not have the right to agree with an advocate upon the provision of state legal aid or to appoint an advocate who provides state legal aid.
Is the provision of state legal aid free of charge?
The provider of state legal aid shall be paid state legal aid fee by the state via the Estonian Bar Association and the recipient of state legal aid need not compensate for the state legal aid fee. An advocate shall not demand the payment of state legal aid fee from the recipient of legal service provided by the advocate by way of state legal aid.
However, state legal aid is not always free of charge. State legal aid may be granted in one of the three following manners:
1) the grant of state legal aid without an obligation to compensate for the state legal aid fee and state legal aid costs;
2) the grant of state legal aid with an obligation to partially or fully compensate for the state legal aid fee and state legal aid costs in a single payment;
3) the grant of state legal aid with an obligation to partially or fully compensate for the state legal aid fee and state legal aid costs in instalments.
Upon grant of state legal aid with an obligation to fully or partially compensate for the state legal aid fee and state legal aid costs, a court may require a recipient of state legal aid to pay and advance payment. Upon failure to pay the advance payment, state legal aid shall not be granted to the person.
The necessity and extent of the compensation for state legal aid fee and state legal aid costs shall be determined in the ruling on the grant of state legal aid.
Upon provision of state legal aid to a person suspected or accused in a criminal matter or person subject to proceedings in the misdemeanour matter, the person receiving the state legal aid is obliged to compensate for the state legal aid fee and state legal aid costs, if the person is convicted in a criminal matter or in the misdemeanour matter.
The court shall, after the termination of the provision of legal services, determine the amount of and procedure for the compensation for state legal aid to be paid by a person is obligated to fully or partially compensate for the state legal aid fee and state legal aid costs.
Is it possible to change the provider of state legal aid?
Upon agreement of an advocate providing state legal aid and the recipient of state legal aid, legal services in the same matter may be provided to the person by another advocate who grants his or her consent for the transfer of the obligation to provide state legal aid to him or her.
Please find the State-funded Legal Aid Act HERE.