Text file: 4694.txt
author: varnost
downvotes: 7
end consideration date: 2013-06-22
id: '4694'
number comments: 6
number views: 2833
proposal type: Competent authority response
response: "Response from the Ministry of Justice\nThe right to free legal aid is regulated\
  \ by the Law on Free Legal Aid (hereinafter: LLA). Article 1(1) of the Law provides\
  \ that the purpose of free legal aid is to exercise the right to justice on an equal\
  \ footing, taking into account the social situation of a person who would be unable\
  \ to exercise this right without detriment to his/her own and his/her family's subsistence.\
  \ In deciding on an application for free legal aid, the financial situation of the\
  \ applicant and the other conditions laid down in the CPLR are taken into account.\n\
  Pursuant to Article 13(1) of the CPPL, a person is entitled to free legal aid if,\
  \ in the light of his or her financial situation and that of his or her family,\
  \ he or she would be unable to meet the costs of legal proceedings or the costs\
  \ of legal aid without detriment to his or her social situation and that of his\
  \ or her family. The applicant's financial situation is determined by reference\
  \ to his or her income and emoluments and those of his or her family, and to the\
  \ assets owned by the applicant and his or her family (Article 12(1)). Article 13,\
  \ paragraph 2, of the ZBPP, the social situation of the applicant and his/her family\
  \ is considered to be at risk due to the costs of court proceedings or the costs\
  \ of legal aid if the monthly income of the applicant (own income) or the average\
  \ monthly income per family member (family's own income) does not exceed 2 times\
  \ the basic amount of the minimum income established by the law regulating social\
  \ welfare services. If the applicant receives, on the basis of a decision of the\
  \ competent authority, financial social assistance under the provisions of the law\
  \ regulating social security benefits, the applicant's financial situation is not\
  \ determined in the procedure for granting free legal aid (Article 12(2) of the\
  \ LBPP).\nWith regard to financial social assistance, we would like to clarify that\
  \ it is very different from the right to free legal aid, since the former is a right\
  \ of an individual to financial resources to meet the minimum subsistence needs\
  \ of life, whereas the right to free legal aid, as already mentioned above, is a\
  \ right to access to justice, and therefore cannot be equated. However, it can be\
  \ reasonably assumed that an individual in receipt of cash social assistance who\
  \ is unable to provide himself with the basic minimum subsistence level will, in\
  \ the event of a need for legal aid, apply for free legal aid. The eligibility criteria\
  \ for cash social assistance are laid down in the Social Security Benefits Act,\
  \ which falls under the Ministry of Labour, Family, Social Affairs and Equal Opportunities,\
  \ so you are advised to contact the competent ministry for further clarification.\n\
  However, in the assessment of the granting of free legal aid, not only the material\
  \ situation of the applicant is relevant, but also the circumstances and facts of\
  \ the case in relation to which the applicant is applying for free legal aid are\
  \ taken into account as conditions, according to Article 42(1) of the LBPP. Namely,\
  \ the case must not be manifestly unreasonable or the applicant must have a probable\
  \ prospect of success in the case such that it is reasonable to initiate or participate\
  \ in the proceedings or to bring or respond to legal proceedings. The case must\
  \ also be relevant to the applicant's personal and socio-economic situation or the\
  \ expected outcome of the case must be of vital importance to the applicant or his/her\
  \ family.\nArticle 41 of the BPLA stipulates that the beneficiary must comply with\
  \ the conditions for the granting of free legal aid throughout the period for which\
  \ it is granted, and that the beneficiary has a duty to inform the competent BPL\
  \ expert service, from the date of granting free legal aid until the date of the\
  \ final account of the costs, of all facts and circumstances or any changes which\
  \ affect or would affect the right to free legal aid and the form, scope and period\
  \ of receiving it. According to Article 42(2) of the BPLA, the BPP Expert Service\
  \ is obliged to initiate the procedure for determining entitlement to free legal\
  \ aid ex officio where it finds that circumstances have arisen which make it necessary\
  \ to issue a different decision on entitlement to free legal aid because the beneficiary\
  \ is no longer entitled to free legal aid or is entitled to a narrower scope or\
  \ only to certain forms of free legal aid.\nWith regard to the proposal to resolve\
  \ cases in which one of the parties has been granted free legal aid through mediation,\
  \ we would like to clarify that Article 28(4) of the CPLR already provides that\
  \ the applicant for free legal aid is obliged to give his consent to mediation and\
  \ to participate in the mediation procedure, but only if the other party also gives\
  \ such consent. Otherwise, Article 5(5) of the same Article provides that the applicant's\
  \ entitlement to free legal aid shall cease or, if the costs of the free legal aid\
  \ have already been incurred, the free legal aid shall be deemed to have been unduly\
  \ received and the recipient shall be obliged to repay it under the provisions of\
  \ Chapter VII of the CPLR.\nIn the light of the above, we consider that the current\
  \ free legal aid regime is adequate and we see no reason to change it.\n "
response date: 2013-08-08
response due date: null
sent date: 2013-05-24
title: Ending free legal aid for people who do not comply with the law
upvotes: 22
url: https://predlagam.vladi.si/predlog/4694
