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Last update: 21-09-2007
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Legal aid - Romania

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TABLE OF CONTENTS

1. What are the costs of a lawsuit and who should normally bear them? 1.
2. What is legal aid? 2.
3. Can I benefit from legal aid ? 3.
4. Can legal aid be obtained for all disputes? 4.
5. Is there a specific procedure for emergencies? 5.
6. Where can I obtain an application form for legal aid? 6.
7. Which documents should I attach to my application for legal aid? 7.
8. Where should I register my application for legal aid? 8.
9. How will I be informed of whether or not I am eligible or not for legal aid? 9.
10. If I qualify for legal aid, what should I do? 10.
11. If I qualify for legal aid, who will choose my lawyer? 11.
12. If I qualify for legal aid, will it cover all the costs of my trial? 12.
13. If I qualify for partial legal aid, who will pay the other costs? 13.
14. If I qualify for legal aid, will it cover any review I might make following the trial? 14.
15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)? 15.
16. If I do not qualify for legal aid, can I appeal this decision? 16.

 

1. What are the costs of a lawsuit and who should normally bear them?

According to section 274 of the Code of Civil Procedure, litigation costs include: judicial stamp duties, judicial stamp, legal proceedings fees and proportional taxation, payment of specialists, reimbursement of witnesses, lawyers' fees and any other expenses for which the winning party can produce evidence.

Under our legislative system, stamp duties and lawyers' and specialists' fees are determined according to the complexity of the case and the value of the litigation object.

As regards the party obliged to bear the litigation costs, this aspect is regulated in detail by the Code of Civil Procedure. Theoretically, the unsuccessful party is obliged, if required, to pay the litigation costs. Nevertheless, the defendant who admits the claims of the claimant, on the first hearing day, is not required to pay the litigation costs, except for the case in which the party has been put in default before the summoning date. Also, when the claims of each party are accepted in part, the court decides the extent to which each of them may be forced to pay the litigation costs. Should there be several plaintiffs or defendants, they shall be equally forced to payment, proportionally or jointly.

In criminal matters, the bearing of the litigation costs is regulated by the provisions of sections 189-193 from the Code of Criminal Procedure. Thus, the costs necessary for performing the pleadings, establishing the facts, preserving the material means of proof, remunerating the lawyers, as well as any other costs occasioned by the pursuance of the criminal suit are covered from the amounts advanced by the state or paid by the parties. The Code of Criminal Procedure distinguishes between the amounts due to witnesses, experts and interpreters, and payment of the litigation costs advanced by the state where the case results in a conviction and in other cases, which are dealt with on a case-by-case basis. Litigation costs incurred by the parties are borne by the defendant or by the injured party, depending on the court ruling on the facts of the case.

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2. What is legal aid?

Legal aid is part of the right of defence. Article 24(2) of the Constitution states that throughout the trial the parties have the right to be represented by a lawyer, chosen or appointed by the judge.

According to section 75(1) of the Code of Civil Procedure, legal aid comprises: granting exemptions, reductions, allowing for scheduling or deferral of the payment of the judicial stamp duties and judicial stamp, and representation free of charge and assistance provided by a lawyer assigned by the lawyers' bar.

Ensuring the right of defence is one of the basic rules of criminal procedure. Under section 6, the Code of Criminal Procedure stipulates that the right of defence is guaranteed for the accused, the defendant and any other parties throughout the criminal proceedings and that any party has the right to be assisted by defence counsel throughout the proceedings.

Judicial bodies are required to inform the accused or defendant, before recording his or her first statement, about the right to legal representation, and must enter this in the record of the proceedings. Under the conditions and in the cases provided by the law, judicial bodies are required to assign a lawyer to the accused or defendant, if he or she has no chosen representative.

Making the right of defence one of the basic requirements for criminal proceedings has required the legislator to establish a wide range of legal instruments for establishing facts that support the defence case. As a consequence, the Code of Criminal Procedure gives the parties different possibilities to demonstrate to the courts the truth of the submitted claims and requests or to contest the allegations or claims made.

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In terms of the procedural instruments, the right of defence is complex and includes:

  • The possibility of the parties to defend themselves during the criminal proceedings;
  • The obligation of the judicial bodies to take into consideration (ex officio) facts favourable to the parties involved in criminal trials;
  • The option and, sometimes the obligation to grant legal aid in the course of a criminal case.

The right of defence also covers the defendant's rights to representation. By its nature, legal aid also guarantees the right of defence. The individual aspects of the right of defence may be covered cumulatively in the criminal proceedings, but sometimes it is possible that a certain component of the right of defence is lacking, and legal aid is thus, essentially, optional and only in the cases in which the law expressly makes provision is the defence counsel required to be present in criminal cases together with the accused or defendant.

Therefore, we consider that legal aid represents a fundamental guarantee of the right of defence.

By legal aid we must understand the support that the defence counsel offers to the parties in a criminal case by providing explanations, advice and interventions as specialists in the field of law. In the case of legal aid defence counsel drafts conclusions in the presence of the party whose interests are being defended. Only lawyers may offer legal aid.

Due to the fact that legal aid is offered by individuals with legal training, it is also called "technical defence” in the specialist literature.

In principle, legal aid for the parties in a criminal case is optional, which means that the interested parties may decide whether to appoint a lawyer to offer them legal aid or not. There are exceptions to this rule, as rules currently in force, may make legal aid compulsory in certain cases.

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In order to provide legal aid, a legal aid agreement must be concluded between the person facing trial and the lawyer. The agreement concluded between the person facing trial and the lawyer covers the payment of an agreed fee. It should also be pointed out that, under section 171 of the Code of Criminal Procedure, legal aid is compulsory in the following cases:

"(2) Legal aid is obligatory where the defendant or accused is a minor, in a rehabilitation centre or in a medical institution, detained or arrested in connection with another case, where the person is detained on the grounds of medical safety, or obliged to receive medical treatment in connection with another case or when the prosecutor or the court considers that the defendant or accused is not capable of defending himself/herself, and in other cases stipulated by the law.

(3) Legal aid is also compulsory in the cases in which the mandatory sentence stipulates for the committed offence is life imprisonment or imprisonment for 5 years or more.

(4) Where legal aid is compulsory, if the accused or the defendant have not appointed a lawyer, one shall be appointed ex officio.

(4^1) Where legal aid is compulsory, if the appointed counsel fails to attend on the date set for the criminal trial or the date set for judgment without due cause and fails to ensure the presence of a replacement, ex officio, allowing the latter the time needed for preparing the defence. In the course of the proceedings, after the commencement of the deliberations, where legal aid is compulsory, if the appointed defence counsel is absent, without cause, on the fixed date and does not ensure that a replacement is present, the court shall appoint a substitute defence counsel ex officio, allowing the latter a deadline of at least 3 days to prepare the defence.

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(5) The mandate of the counsel appointed ex officio shall end when the appointed defence counsel appears.

(6) Should the defence counsel be absent for the judgment and there be no possibility to find a replacement as under subsection 41, the hearing shall be adjourned.”

3. Can I benefit from legal aid ?

Anyone who cannot meet the costs of legal proceedings, without making it difficult to maintain him/herself or his or her family may apply for legal aid (section 74 of the Code of Civil Procedure).

In criminal cases, legal aid free of charge is granted, at request, to certain categories of victims, depending, on the one hand, on the seriousness of the crime committed, and, on the other hand, the victim's financial situation. (Act No 211/2004 on measures to ensure the protection of crime victims).

Free legal aid is granted to direct victims of serious violent crimes (attempted murder, murder in the first degree and aggravated murder, grievous bodily harm and crimes wilfully committed which resulted in the grievous bodily harm of the victim) or other serious sexual offences (rape, sexual intercourse with a minor, sexual abuse of a minor, violent or otherwise). Free legal aid is granted to the victims indirectly exposed to some serious crimes (the spouse, children and the persons maintained by direct victims who dies as a result of the crimes).

Free legal aid is granted to the victims of other crimes, irrespective of the nature of the crime, if the monthly income for each member of the victim's family is at most equal to the minimum, national gross basic wage, established for the year in which the victim applied for legal aid.

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Furthermore, the victims of the crimes under Act No 678/2001 on the prevention and control of the trafficking in human beings, as amended, have the right to receive legal aid needed to exercise their rights within the criminal procedural law at all the stages of the criminal proceedings, and to support their applications and civil claims against the persons who committed the crimes covered by this law they have affected there.

4. Can legal aid be obtained for all disputes?

The law makes no distinction regarding the nature of disputes, so we may conclude that legal aid can be obtained for any kind of dispute.

5. Is there a specific procedure for emergencies?

As regards legal aid, there is no specific procedure for emergencies.

6. Where can I obtain an application form for legal aid?

There is no standard application form which the interested party must use to apply for legal aid. The application must include the details required by law and fulfil all the substantive and formal requirements specific to the applications submitted to the judicial authorities. In addition to these requirements, the application for legal aid should also contain some specific details. It must be addressed in writing to the court of justice and set out the case to which it refers, as well as the applicant's financial situation (section 76 of the Code of Civil Procedure).

7. Which documents should I attach to my application for legal aid?

The application for legal aid must shall be accompanied by written proof of the applicant's income and financial commitments.

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8. Where should I register my application for legal aid?

The application for legal aid is submitted and registered at the court of justice where the request is made.

9. How will I be informed of whether or not I am eligible or not for legal aid?

The court examines the application, asks for explanations and proof from the parties or information from the local authorities, where necessary, and decides, without deliberating, in the council chamber (the first subsection of section 78 of the Code of Civil Procedure).

The final decision concerning the application for legal aid or the court's review of the approved legal aid is not subject to appeal (the first subsection of section  78 of the Code of Civil Procedure).

The opposing party may nevertheless, submit evidence to the court regarding the real situation of the person whose the application has been approved at any time, but the aid granted is not suspended during any review (second subsection of section 78 of the Code of Civil Procedure).

10. If I qualify for legal aid, what should I do?

You should proceed in accordance with the answers to questions 6-8 in this questionnaire.

11. If I qualify for legal aid, who will choose my lawyer?

Under section 75(1)(2) of the Code of Civil Procedure, defence counsel and legal advice are provided free of charge by a lawyer appointed by the lawyers’ bar.

Under sections 68-69 of Act No 51/1995 on the organisation and practice of the legal profession, as amended: "The bar association provides legal aid in all cases in which defence counsel must be provided by or at the request of the courts of justice, the prosecution service or local authorities in the cases where in which these bodies believe that the persons are clearly unable to pay the fee.

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In exceptional cases, if the rights of the needy person are prejudiced by a delay, the president of the bar association may approve the granting of assistance free of charge.

The bar association organises legal aid services at all the county courts which provide legal aid and at the local criminal prosecution bodies, which are provided by a permanent lawyer appointed by the council of the bar association and directed by a member of the council.”

12. If I qualify for legal aid, will it cover all the costs of my trial?

The categories of litigation costs from which recipient of legal aid is exempt, and the forms of legal aid are established by the court.

Where legal aid is granted ex officio at the request of the courts of justice or public prosecution services, the fees are paid by the Ministry of Justice. Where legal aid is granted ex officio at the request of the local authorities, the fees are paid by them.

13. If I qualify for partial legal aid, who will pay the other costs?

When partial legal aid is granted, the provisions governing the litigation costs contained in the Code of Civil Procedure or the Code of Criminal Procedure, are applied depending on the case in question.

14. If I qualify for legal aid, will it cover any review I might make following the trial?

Although the law does not make express provision, anyone entitled to legal aid may benefit from it throughout the entire proceeding (until the final decision is given, i.e. until all appeal options have been exhausted).

15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)?

Under section 70 of the Code of Civil Procedure, "if the court ascertains that the application for legal aid has been made in bad faith, by conceding the truth, it may reconsider the approved legal aid and fine the party an amount equal to the sums from which it was exempted. Under section 80, the right to assistance ceases at the party’s death or following any improvement of his/her financial situation.

16. If I do not qualify for legal aid, can I appeal this decision?

Under the third subsection of section 70 of the Code of Civil Procedure the court's final decision on a legal aid application or a review of legal aid approved is not subject to any appeal procedures.

Further information

Useful links:

The Bucharest Bar Association, http://www.baroul-bucuresti.ro/index_ro.asp română

The National Romanian Bar Association, http://www.uar.ro/ română

« Legal aid - General information | Romania - General information »

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Last update: 21-09-2007

 
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