The Right to Effective Defense and the Reform of the Ex Officio Appointment System (2007-2009)

The lack of an efficient criminal legal aid system is especially detrimental to indigent pre-trial detainees and defendants in general. Fair and effective access to criminal justice to those who cannot afford to retain a lawyer is provided for by international norms and Hungarian laws enshrining the right of indigent defendants to have free and effective defense. However, according to several empirical studies, in Hungary the performance of counsels appointed for defendants is substandard, including low attendance during pre-trial stage; poor quality of work through the proceeding; and the lack of trust by defendants. A 2003 survey of 500 pre-trial detainees by the HHC showed that 35% of indigent detained defendants do not meet their appointed counsel before the trial at all. As also shown by the HHC’s Model Legal Aid Board Program accomplished in 2007, besides the relatively low remuneration, the main reasons for the situation is the complete lack of quality assurance mechanisms by either the state or bar associations, and the lack of any standards set for appointed lawyers.

One of the Model Legal Aid Board Program’s conclusions in this regard was that as a first step a standardized tool shall be developed that makes the quick scrutiny of defense work possible. Accordingly, in 2008, the HHC initiated a research on the possible ways to establish the quality of ex officio defense through the studying of 150 actual case files, as well as on the best practices of countries with an advanced criminal legal aid system (see project ‘Effective Defense Rights in the European Union and Access to Justice‘). In the course of the project, the HHC developed an assessment questionnaire with the help of an expert group involving participants of key stakeholders (bar association, Ministry of Justice), aimed at the basic assessment of the quality of ex officio legal counsels’ performance on the basis of case files. The research conducted into files of cases of “homicide” and “bodily harm leading to death” at eight county courts is based on the idea that through a standardized questionnaire used for formal case analysis the quality of defense work can be assessed without compromising the independence of the legal profession. The aim of this pilot research is two-fold: to test whether the questionnaire provides a reliable tool for the assessment of the quality of defense, and to provide further empirical evidence about the state of play in state funded criminal legal aid with a view to be used in awareness raising and lobbying activities.

The research was accomplished in February 2009. Based on the results of the pilot exercise and a desk research into best practices of countries with an advanced quality assurance system in criminal legal aid in the Framework of the “Effective Defense in the European Union and Access to Justice: Investigating and Promoting Best Practices’ a study was written, which was followed by a professional round-table aimed at discussing the research report and coming up with recommendations for (i) the improvement of the legal framework for effective defense; (ii) remedying the deficiencies in the legal practice hindering the proper enforcement of effective defense; and (iii) the method for assessing the quality of defense work.

Funded by: Trust for Civil Society in Central and Eastern Europe, European Commission, Open Society Justice Initiative