On June 9, 2023, a new Article 67-1 was added to the Code of Civil Procedure of the Republic of Azerbaijan (hereafter CCiP). This norm, which came into force on July 26, 2023, stipulates the procedure and conditions for providing an advocate at the expense of the state to persons who need legal assistance but do not have sufficient funds in the first and appellate courts in civil cases.
This norm is new in the legislation of Azerbaijan, and until now the provision of an advocate at the expense of the state in the first and appellate courts in civil cases has not been envisaged.
Tribunat made a legal analysis of the newly added Article 67-1 of the CCiP.
According to the new norm, several conditions must be met at the same time for the provision of an advocate at the expense of the state in the first and appellate courts in civil cases:
- The person must be in need of professional legal assistance;
- He should not have enough funds for this.
Article 67-1 of the CCiP regulates the provision of an advocate at the expense of the state as follows:
- Before starting the court proceedings;
- During court proceedings.
In the first case - if a person needs legal assistance to apply to the court, he applies to the local advocate office, and that institution applies to the district (city) court of its location with a petition.
In the second case, that is, during court proceedings, a person can apply directly to the court in writing and ask to be provided with an advocate at the expense of the state.
The legislator also defined the exact range of persons who can be provided with an advocate at the expense of the state. So, the following persons can be represented in court by an advocate at the expense of the state:
- persons who are disabled due to 61-100 percent impairment of body functions and are not working, as well as disabled persons under the age of 18;
- victims of human trafficking, victims of domestic violence;
- children who have lost their parents or are deprived of parental care;
- members of families receiving targeted state social assistance;
- persons registered as unemployed in the relevant executive authority (State Employment Agency);
- other persons whose financial situation and average monthly income are determined by the court to be significantly lower than the subsistence minimum for the current year.
Furthermore, in paragraph 3 of the interpreted norm, it is noted that in addition to the persons mentioned in this list, other persons participating in the case who do not have sufficient funds to pay for the advocate’s services also have the right to be exempted from paying the legal assistance fee provided by the advocate and to have the payment made at the expense of the state budget.
The addition of this norm to the legislation is a very positive step from the point of view of persons with insufficient funds being able to defend their rights in court in a more professional manner, as well as providing legal assistance in the first and appellate courts in civil cases.
However, there are points in the new article that are not clear enough and give rise to abuse in some cases. For example, the prerequisite for providing an advocate at the expense of the state to a person who needs professional legal assistance and does not have sufficient funds is "the existence of preliminary evidence of the sufficient validity of the claim". This is, of course, an approach that leads to subjective judgments and individual evaluations, which may cause certain problems in the future.
Similarly, the category of "persons whose financial situation and average monthly income are significantly lower than the subsistence minimum for the current year" is open to subjective considerations. The minimum living wage for 2023 is 246 manats for the country, 261 manats for the working population, 199 manats for pensioners, and 220 manats for children. But what limit is meant by "the financial situation and the average monthly income being significantly lower than the subsistence minimum for the current year"? As can be seen from the analyzed norm, this concept is vague and the courts are given a wide discretion in this matter. This, of course, can lead to abuse.
Furthermore, the number of persons registered as unemployed in the State Employment Agency is much less than the number of persons who are actually unemployed in the country. According to the State Statistical Committee, the number of unemployed persons registered in local agencies of the State Employment Agency for July 1, 2023, is 247.4 thousand (two hundred forty seven thousand four hundred) people.
According to the World Bank in Azerbaijan, the unemployment rate in the country is 5.5% (559,626 people) as of January 1, 2023. Apparently, there is a serious difference between the information shared by the State Statistical Committee and this figure. However, the accuracy of the statistics of the World Bank in Azerbaijan also raises serious doubts, and it is met with criticism in a number of cases. It is clear that the number of unemployed and poor sections of the country's population is many times higher than this figure. It's just that, for various reasons, those persons have not been registered.
Another category of persons who can be provided with legal assistance at the expense of the state are members of families receiving targeted state social assistance. Not all of the low-income families applying to the Ministry of Labor and Social Protection of the Population are provided with targeted social assistance. Because the range of conditions defined for the provision of this assistance is specific, and for this reason, the number of families who receive a refusal from the ministry despite being low-income is sufficiently high. According to the information provided by the State Statistical Committee, according to the statistics for January 1, 2023, 290.8 thousand members of a total of 65.5 thousand low-income families in the country receive targeted state social assistance. The number of families with low-income status in the country is significantly higher than this statistic.
Moreover, although 3 groups (1st degree 31-60, 2nd degree 61-80, 3rd degree 81-100) of impairment of body functions are determined based on the Disability Determination Criteria, the category of persons who can be provided with legal assistance at the expense of the state does not include persons who have been diagnosed with a disability due to a 31-60 percent impairment of body functions.
In other words, only the part of persons listed in paragraph 67-1.4 who are registered in the appropriate state institutions will be able to benefit from professional legal assistance in civil cases in first and appellate courts. People who actually meet those criteria but do not have the appropriate registration will continue to have difficulties in getting legal assistance.
The Decision of the Constitutional Court of June 11, 2002, regarding Articles 67 and 423 of the Code of Civil Procedure of the Republic of Azerbaijan states, "The right to receive free legal assistance in the cases prescribed by law must, first of all, be connected with the interests of justice, which mainly refers to ensuring the principle of equality of opportunities of the parties. When the interests of justice require it, the right of low-income persons to free legal aid is an independent right that is not an alternative to the right to defend one's position. When legal problems are raised in any case that requires certain professional knowledge, the state must ensure not only the constitutional right to receive quality legal assistance but also such a right to low-income persons in real conditions."
It is for this reason that Paragraph I of Article 61 of the Constitution stipulates that everyone has the right to receive high-quality legal assistance.
Although it is not directly related to the interpreted norm, another issue is that the quality of the advocate service provided at the expense of the state is not up to the level that meets the requirements. The fact that the amount paid to an advocate for legal assistance at the expense of the state is low (6 AZN per hour) calls into question the efforts of advocates to be interested in this work and to fully implement their professional obligations.
The right to free legal assistance is also recognized by the European Convention on Human Rights when the person's funds are insufficient to pay for the services of a lawyer, when the interests of justice require it (Article 6). The European Court of Human Rights has shown in its precedent judgments that two conditions are necessary for a person to benefit from free legal aid. First, the person must not have sufficient funds to obtain paid legal aid. For this, it is sufficient that there are no signs to the contrary (that the person has the said funds) (Pakelli v. Germany, §34).
The second condition is that a person can be provided with legal aid "when the interests of justice require it". When determining this, the court takes into account the circumstances of the case and asks whether the assistance of a lawyer was "appropriate in the particular circumstances of the case" (Artico v. Italy, § 34-35).
Thus, Tribunat concludes that the new norm added to the CCiP is an important step towards providing legal assistance to those who need professional legal assistance but do not have sufficient funds in the courts of first instance and courts of appeal in civil cases. However, the vagueness of some concepts in the norm can lead to subjective judgments and the existence of different judicial practices. At the same time, the fact that the legislation sets the conditions that the person is unemployed in appropriate state institutions, is a member of a family receiving targeted state social assistance, etc. as proof of his/her lack of funds deprives people who actually belong to this class but who do not meet those formal requirements of legal assistance at the expense of the state.
