Romania: does everyone really have the right to a lawyer?

The justice system in Romania seemed stacked against people who can’t afford a private lawyer, as court appointed counsel are blocked from serving their clients properly.

Defendants suffering as court appointed lawyers face obstacles

For the past year APADOR-CH has been implementing a project the aim of which is to help people in detention access legal support. This project came just in time, with Romania reaching the May 2019 deadline for transposing EU Directive 1919/2016 on free legal assistance for suspects and those charged with a crime.

It is now July and the Directive has still not been transposed. In the meantime APADOR-CH has brought together police and prosecutors with defence lawyers to discuss the main obstacles to making sure that detainees get access to a lawyer.

In another project, APADOR-CH found that pre-trial detention was being used excessively in Romania (which led to overcrowding of pre-trial detention units). One of the reasons for this situation was that defence lawyers were not readily available.

The project also found that lawyers are not always present at hearings in which such measures are ordered, and they often have limited time to read up on their cases and prepare a strong defence. And shockingly, many judges admit that they are inclined to rely mainly on prosecutors’ arguments when making their decisions. This may make defence lawyers less likely to dedicate time and effort to the pre-trial phase, which can have a negative impact on the outcome of the case for the defendants.

Working group identifies main problems and offers solutions

From the discussions of the working group of lawyers, police officers and prosecutors, APADOR-CH found out what stands behind the lack of motivation among lawyers. The first factor is the very low fees for court appointed lawyers. The working proposed increasing the fees and in the spring of 2019 the Ministry of Justice actually approved a significant increase. The second factor is that it is often difficult for defence lawyers to access their clients’ files. The working proposed creating an electronic filing system to combat this, which could be accessed online, so that lawyers would have time to prepare the defence before the hearing. The third factor is that lawyers are often poorly trained. The working group proposed introducing the requirement of continuous training as a condition for lawyers obtaining annual accreditation. The fourth factor is that often multiple lawyers represent a single client in one case.The working group said it would be better for just one lawyer to represent the defendant throughout the investigation or throughout the trial. Currently, a different lawyer is appointed by the court for each hearing, with each of them starting from scratch every time.

The representatives of public institutions also agreed that the issues identified by the working group are real and can be solved, most likely at the same time as other systemic problems, such as the lack of appropriate work facilities for prosecutors and police officers, or the lack of functional computers (which in some prosecutors’ offices are up to 15 years old).

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