Legal Empowerment through Open Justice Institutions (MK0164)

Which public problem is addressed by the commitment? The new Law on Free Legal Aid (LFLA), whose implementation started in October 2019, has significantly improved access to justice for citizens. However, the law showcased certain weaknesses in the practice and needs to be amended in order to ensure efficient enforcement. One problem concerns forensic services that should be provided by the Bureau of Judicial Forensic. The problem identified concerns the Bureau’s inability to secure forensic expert in most common areas of legal problems for which citizens need free legal aid, including geodesy experts and DNA analysis (molecular biology). The second problem is related to (non)approval of applications for secondary legal aid in the case of victims of violent criminal offence in criminal proceedings. This is prompted by contradictory nature of transitional and final provisions under LFLA and limiting mechanisms under the Law on Criminal Proceedings (LCP). The third problem concerns the need for legal empowerment and legal education services under the human rights based approach. There are two dilemmas in respect to legal regulation of forensic expertise under the system of free legal aid. First, the Strategy on Justice System Reform 2017-2022 anticipates an activity for termination of the Bureau. This brings under question Art.13 (6) of LFLA. Second, the method, procedure and deadlines for provision of forensic findings and opinions by relevant body or forensic expert are not regulated in sufficient details. There is no back-up plan in case the Bureau is terminated. On the other hand, underway is development of Draft Law on Forensics, which keeps provisions related to operation of the Bureau. The uncertainty is identified in respect to current 100 regulations for coverage of forensic costs or addressing the lack of forensic experts in areas of legal problems faced by the vulnerable population. In terms of access to justice for victims of violent criminal offences, LFLA is contradictory as one provision explicitly stipulates that defence and court representation in criminal proceedings shall be secured pursuant to LCP (Art.38 of LFLA), while another provision still leaves in effect stipulations from the old law that anticipate legal aid in all court proceedings, in order to ensure protection for victims of criminal offences and victims of human trafficking (Art.49 of the new LFLA in relation to Art.8 of the old LFLA). Nevertheless, even if legal representation for victims of criminal offences is provided pursuant LCP, i.e. working version of the new LCP shows intent to find adequate solution, this does not eliminate the problem related to restricted mechanisms available to victims under LCP. Possibility for free legal aid is referred only in Art.53 (3) in correlation to Art.55 (1) (1) of LCP. This formulation is very rigid and stipulates that victims shall be entitled to legal counsellor on the burden of budget funds, i.e. free-of-charge meeting with counsellor or proxy prior to depositing his/her statement (provided they participate in proceedings as damaged party), i.e. statement or property tenure motion, provided they have suffered serious psycho-physical damages caused by the criminal offence and only if they are victim of criminal offence with threatened sanction of imprisonment sentence in duration of at least 4 years (low threshold for threatened sanction for this crime). Such formulation does not cover full representation during criminal proceedings, but reduces it to counselling during deposition of first statement. Leaving the victim of violent crime alone, without adequate representation during the court process just because LCP or LFLA does not allow such mechanism is contrary to all international standards and principles related to legal aid and legal services for victims. In addition to free legal aid as formally acknowledged form, there are also informal services that are most accessible to marginalized citizens because they are provided by civil society organizations, and by trained individuals from their communities.. Cooperation among different actors that work on legal empowerment and access to justice at local level remains very low. There is lack of specific joint action and mutual support, on the account of which implementation on the ground, which ultimately reflects access to justice, is left to the will of different entities without specific sustainable solutions in place. MoJ regional offices are not very visible and recognizable among citizens in physical terms. In many locations, due to cost-effectiveness, MoJ regional offices are accommodated at buildings with other institutions, are inadequately marked or not marked at all. Physical inaccessibility could mean difficult access to justice, dependence from other persons and discouragement to exercise the right to free legal aid. Persons with impaired sight and hearing are also non-informed about their right to free legal aid because there are no informational materials adjusted to their needs. MoJ’s website does not allow insight in the names of attorneys next in line to act upon application for free legal aid. Moreover, the website is not adjusted to persons with dyslexia and does not provide sufficient information in languages spoken by minority communities. There are no references where 101 and how citizens can lodge complaints about performance by authorised providers of free legal aid. According to the last research on legal needs of citizens from 2015, every second citizen in RNM is facing some legal problem. Worrying is the fact that citizens do not recognize their legal problems and qualify as legal problems only those that would end up before the court. It is evident that citizens in RNM need services and legal empowerment, but special attention should be paid to vulnerable groups which, due to their vulnerability, are in much more disadvantaged position and have limited access to justice.

Main objective of the commitment Main objective: legal empowerment and access to justice for all citizens according to their legal needs and problems. Based on previously achieved milestones under NAP4 commitment, this new commitment ensures sustainability for access to justice and legal empowerment (taking into consideration recommendations from OGP Independent Reporting Mechanism to include the National Strategy on Legal Empowerment) by achieving several outcomes, as follows: - Creation of the National Strategy on Legal Empowerment; - Increased visibility and physical accessibility of MoJ regional offices; - Adoption of legal amendments aimed at more efficient exercise of access to justice and related to forensic expertise and access to legal aid for victims of violent crimes; - Establishment of cooperation between the Bureau of Judicial Forensic and forensic experts from all areas, and regulated procedure for provision of forensic findings and opinions; - Informed representatives from MoJ, the Bureau, Bar Association and other institutions providing forensic expertise in areas that affect access to justice for population of poor property status; - Publicly available information on forensic experts and providers of formal and informal legal services; - Merging data hosted on the websites https://pravnapomos.mk/ and https://www.pravnozajakni.mk/; - Mapping formal and informal providers of legal aid; - Creating and maintaining the publicly available registry of formal and informal legal aid providers; - Merging data disposed by CSOs and MoJ; - Establishment of interoperable and comprehensive database with information from all legal aid and legal service providers in order to assess the current state-of-affairs and find practical and reliable solutions; - Available services and information for persons with disabilities.

How will the commitment contribute to addressing the public problem? The commitment concerns several interventions that will contribute to more efficient access to justice for all citizens. First, LFLA needs to be amended in order to provide basis for efficient access to forensic services in all areas for citizens and to guarantee efficient protection of victims of violent crimes. At the same time, in order to ensure forensic services pursuant to LFLA for legal issues that qualify for free legal aid, the Bureau of Judicial Forensic will sign contracts with forensic experts, followed by activities that will guarantee 102 involvement of all parties in the process. In order to provide efficient protection for victims of violent crimes, the gap in access to free legal aid in criminal proceedings for these victims necessitates relevant crime offences currently threatened with imprisonment sentence in smaller duration to be stipulated as crimes threatened with imprisonment sanction in duration of at least 4 years. Next is creation of the National Strategy on Legal Empowerment. The strategy will be created under transparent process with involvement of all relevant actors. The national strategy will be multi-sectoral and will include all stakeholder institutions and CSOs that work on provision of services, legal aid and legal empowerment. Moreover, it will anticipate specific activities, budget and timeline for legal empowerment of all citizens at national and local level. Comprehensive and sustainable approach is needed in order to merge activities of local institutions and CSOs into joint actions aimed at promoting access to justice for all. At the time of COVID-19 pandemic, efforts will be made to contribute to greater visibility, transparency and accessibility of formal and informal legal aid providers. Increased visibility and physical accessibility of MoJ regional offices will mean better availability of their services for citizens. Adjustment of relevant materials will result in timely information and empowerment of persons with disabilities. Accessibility of registries of legal aid providers will contribute to information and guidance of citizens where to address their legal needs according to the nature of their legal problem. The registry of forensic experts will contribute to greater openness of data and citizens’ right to choose.

How is the commitment relevant to OGP values? COMMITMENT IS IMPORTANT FOR TRANSPARENCY because it provides access to new, more comprehensive and timely information related to exercise of the right to free legal aid and informal legal aid modalities and legal empowerment of citizens. It improves quality of information made available to citizens at national and local level, in exercise of their right to access to justice. It improves public availability of information and facilitates the right to information in respect to exercise of the right to access to justice by providing legal aid for citizens, especially for the most marginalized groups. COMMITMENT IS IMPORTANT FOR CIVIC PARTICIPATION because it creates and improves possibilities and conditions for public participation and impact in decision-making, thereby ensuring creation of activities that directly emerge from and are tailored to citizens’ needs, and active participation of citizens. It creates or improves the enabling environment for civil society by involving civil society organizations and citizens as active factors in development and promotion of access to justice, which will be formed into a complementary cycle of activities based on the needs of those for which they are intended. COMMITMENT IS IMPORTANT FOR PUBLIC ACCOUNTABILITY because it creates or improves accountability rules, regulations and mechanisms for public officials by creating and publishing publicly available information on implemented solutions on the basis of which all citizens, including the most marginalized groups, will be able to find adequate solution to their daily legal problems and hold the authorities accountable.

Additional information • Required/secured budget by MoJ to implement part of the commitment. • Linked to the Law on Free Legal Aid, Strategy on Justice System Reform 2017-2022 • Linked to UN Sustainable Development Goal 16.3. RNM is indicated as model country committed to promote access to justice, including the priority area “access to justice” under OGP National Action Plan 2018-2020. Monitoring implementation of SDG 16.3 in the state necessitatesregular data collection and record keeping on the status of vulnerable groups of citizens These data should serve as baseline for development of national plan for implementation of SDG 16.3., i.e. plan for promotion of access to justice for vulnerable groups of citizens. Based on the analysis of previously collected data per defined indicator to monitor implementation of SDG 16.3 at national and local level, the plan for implementation of SDG 16.3. will be developed in the next period. In addition, one of the most frequent legal problems for which citizens need fee legal aid concerns geodesy studies. MYLA, with support from FOSM, developed policy brief on forensic expertise and free legal aid titled “Does the new Law on Free Legal Aid from 2019 facilitates access to free-of-charge forensic expertise to persons that were approved secondary legal aid?”. This policy document contains more information on the problem issue, but also recommendations and proposals to address the problem.

No. Milestone Indicators Activity holder Start date End date 4.4.1 Amend the Law on Free Legal Aid in respect to provisions under articles 13, 38, and 49 1. LFLA amended with adequate provisions (yes/no) MoJ, CoE, CSOs (that proposed this commitment and organization s authorised for provision of free legal aid) October 2021 May 2022 4.4.2 Cooperation agreements between the Bureau of Judicial Forensic and other external forensic experts in the field of 1. Number of cooperation agreements signed with forensic experts BJF June 2022 October 2022 104 geodesy and molecular biology 4.4.3 Informative sessions on the need for forensic expertise in areas that concern access to justice for the population of poor property status with MoJ, BJF, Bar Association, other institutions that provide forensic expertise 1. Number of participants on informative sessions/workshops MoJ, BJF, MYLA October 2021 March 2022 4.4.4 Development of internal guides (or alternatively: memorandum between MoJ and BJF) on actions to be taken in case of needed forensic expertise as part of approved secondary legal aid 1. Number of meetings held for development of internal guides 2. Number of people involved in development of internal guides MoJ, BJF March 2022 June 2022 4.4.5 Analysis with shortterm recommendations (for urgent resolution of the forensic issue and furtherance of cases that are currently backlogged on that account) and longterm recommendations (legislative changes that would address the forensic issue in the long run) 1. Number of shortterm recommendations developed 2. Number of shortterm recommendations accepted 3. Number of longterm recommendations developed MoJ, CoE October 2021 December 2021 105 4.4.6 Development and maintenance of comprehensive publicly available registry of forensic experts in areas of interest for free legal aid 1. Number of forensic experts enlisted in the registry MoJ, BJF January 2022 May 2023 4.4.7 Ensure physical access and visibility of LFLA 1. Number of MoJ regional offices that have secured physical accessibility for persons with disabilities and impaired sight MoJ, MoJ regional offices October 2021 June 2023 4.4.8 Adjustment of MoJ official website (or https://pravnapomos. mk/) for unhindered information dissemination in relation to LFLA (visibility and accessibility of information on LFLA for persons with dyslexia, persons with visual and auditory impairments, and for members of ethnic communities) 1. Number of categories of persons for which MoJ website is adjusted MoJ, MoJ regional offices, CoE October 2021 September 2022 4.4.9 Merging data from websites https://pravnapomos. mk/ and https://www.pravnozaj akni.mk/ 1. Number of coordination meetings held between MoJ, CoE and FOSM 2. Time needed to merge data from websites MoJ, FOSM, CoE October 2021 May 2023 4.4.10 Mapping formal and informal legal aid providers 1. Number of formal and informal legal aid providers mapped MoJ and CSOs members of the informal network “Legal Empowerme January 2022 June 2022 106 nt” (FOSM and 16 CSOs) 4.4.11 Creation and maintenance of publicly available registry with MoJ on formal and informal legal aid providers 1. Number of formal/informal legal aid providers available on the platform MoJ, FOSM July 2022 May 2023 4.4.12 Merging data disposed by CSOs and MoJ 1. Time needed for merging data, i.e. data migration from CSOs to MoJ database MoJ, FOSM and CoE October 2021 February 2022 4.4.13 Interoperability of existing database that allows access to justice 1. Number of service providers covered by the database (associations, MoJ regional offices, legal clinics, and community members providing such services) MoJ and CoE January 2022 June 2023 4.4.14 Development of National Plan (Strategy) on Legal Empowerment 1. Number of stakeholders involved in developing the National Plan (Strategy) on Legal Empowerment 2. Number of meetings/worksho ps held for development of the national plan 3. Number of activities covered by the national plan MoJ, MoJ regional offices, informal network “Legal Empowerme nt” January 2022 June 2023 New commitment taking into consideration recommendations from IRM

Action Plan Review

Commitment 4.4: Legal empowerment of citizens through available information and open institutions 

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Modest

Commitment 4.4: Legal empowerment of citizens through available information and open institutions [Ministry of Justice, Bureau of Judicial Forensic, Foundation Open Society – Macedonia (FOSM), Macedonian Young Lawyers Association (MYLA), Izbor – Strumica, Educational Humanitrial Organizaiton (EHO) Shtip, Station LET Prilep, Council of Europe]

For a complete description of the commitment, see Commitment 4.4 in the action plan here.

Context and objectives:

This commitment continues efforts from the previous action plan to strengthen access to legal aid for all citizens. The new Law on Free Legal Aid (LFLA) entered into force in October 2019 and greatly relaxed the conditions for citizens to obtain free legal aid. [156] However, according to the Foundation Open Society Macedonia (FOSM), the new LFLA has shortcomings and ambiguities, especially in providing expertise and protecting victims. ^[157] For example, a person receiving secondary legal aid (i.e., legal aid for specific legal matters for those unable to pay for the expenses), in addition to the costs for a lawyer, will be provided funds for court and administrative fees, experts, and other costs. The Bureau of Judicial Forensic is supposed to provide this expert knowledge, but they’ve had difficulties providing expertise in many commonly requested areas, including geodesy (the science of accurately measuring land) and DNA analysis. According to FOSM and the Macedonian Young Lawyers Association (MYLA), failure to provide expert DNA analysis can particularly affect children of disadvantaged groups by delaying litigation and court procedures for establishing paternity. [158] Furthermore, geodesy is important for real estate disputes. According to FOSM and MYLA, one of the problems in providing geodesy expertise is the discrepancy between the amount of remuneration determined by a 2015 government decree [159] and the reimbursement of the costs set out in the Tariff List for performing geodetic work. [160]

This commitment addresses some of the shortcomings in the LFLA, particular around forensic expertise. Legal amendments will be adopted for more efficient access to justice, with a focus on forensic expertise and access to legal aid for victims of violent crimes. The commitment calls for increased cooperation between the Bureau of Judicial Forensic and forensic experts for better provision of forensic findings and opinions. It also calls for the MoJ to maintain a publicly accessible registry of individuals and institutions who can serve as licenced experts in forensics.

This commitment also seeks to expand information on free legal services that are covered under the LFLA. Activities include creating a national strategy on legal empowerment, increasing the physical accessibility of the MoJ’s regional offices, and merging data on the national legal service websites https://pravnapomos.mk/ and https://www.pravnozajakni.mk/. The commitment also creates a public registry of formal and informal legal aid providers and merges CSO and MoJ data to assess the current state of affairs and find practical, reliable solutions to problems around legal aid provision.

The commitment was developed in collaboration between all relevant nongovernment stakeholders and public institutions. During the co-creation, stakeholders met several times to discuss the challenges faced by citizens accessing free legal aid and LFLA shortcomings that could be addressed by the commitment. FOSM believes that the planned results will be achieved. ^[161] The commitment is relevant to the OGP value of transparency, since it will improve access to information on formal and informal legal aid providers. The activities are verifiable, though they could benefit from more description of the intended outputs and outcomes, as well as the specific indicators that will be used to measure implementation.

Potential for results: Modest

According to FOSM and the stakeholders involved in this commitment, there remains a large group of marginalised citizens who face limited access to free legal aid due to LFLA contradictions and restrictions in the Law on Criminal Procedure (LCP). ^[162] For example, one provision of the LFLA explicitly states that defence and representation in criminal proceedings are provided in accordance with the LCP. ^[163] However, the LFLA simultaneously leaves in force a provision of the old law that provides legal aid in all court procedures, to provide protection for victims of crime and human trafficking. ^[164] The amendments to the relevant articles of the LFLA (13, 38, and 49) could address these contradictory provisions and facilitate more comprehensive access to aid for the entire criminal procedure. Ultimately, better access to free legal aid depends on the content and scope of the final amendments voted on by Parliament. As the exact amendments are still to be decided at this time, the IRM considers the potential for results to be modest.

This commitment could address two current dilemmas identified by stakeholders regarding the legal regulation of expert testimony in the free legal aid system. First, it is uncertain if the Bureau of Judicial Forensics will be abolished. The Justice Sector Reform Strategy 2017–2022 envisages the abolition of the Bureau but, at the same time, a draft Law on Expert Findings is being prepared that retains provisions for the Bureau. The abolition of the Bureau would call into question provisions of the LFLA because there is no plan on how access to experts will be regulated if the Bureau is abolished. Creating a register of expert witnesses for secondary legal aid could ensure continued participation of expert witnesses and institutions in legal cases, even if the Bureau is abolished. Second, the manner, procedure, and timing for obtaining an expert witness in forensics are not sufficiently regulated. This leaves uncertainty in covering experts’ costs and in providing experts in areas where vulnerable populations have legal problems. [165] Therefore, the amendments to this article could ensure that victims receive legal aid for the entirety of criminal proceedings, versus only when the victim gives their initial statement.

The focus on forensics in relation to court proceedings is highly relevant. According to data from the Bureau, in 2020, only three requests for expert opinions were received for beneficiaries of free secondary legal aid, even though the MoJ approved free secondary legal aid in 117 cases between October 2019 and June 2020. [166] For this commitment, the MoJ will create a comprehensive, publicly available registry of individuals and institutions licensed in forensics who can serve as expert witnesses in free legal aid cases. This registry would help the MoJ obtain expert opinions in criminal cases faster, thus improving overall efficiency. Importantly, this commitment could increase the number of free legal aid cases who receive expert testimony, thus improving the overall fairness of court proceedings.

This commitment could strengthen citizens’ access to free legal aid and enhance the transparency of the justice system. The participating CSOs will work with the MoJ to identify organisations that provide services to citizens, which will feed into a new, comprehensive register for providers of free legal aid. This register will be publicly available and updated regularly. Furthermore, citizens will have easier access to the free legal aid, because all the necessary documentation and decisions will be given electronically. ^[167] This could result in more citizens applying for free legal aid.

This commitment could also help ensure greater access to justice for persons with disabilities. Due to financial reasons, the branch offices of the MoJ are often in buildings with insufficient physical access. Physical inaccessibility can discourage persons with disabilities from accessing free legal aid. In addition, people with visual or hearing impairments have difficulties as there is no material tailored to their needs. On the MoJ's website, it is currently not possible to see which lawyers have specific expertise to act on a request for free legal aid by persons with disabilities. The website is not adapted for people with dyslexia and does not contain enough information in minority languages. It also does not reference where and how citizens can file complaints about legal aid providers. ^[168] This commitment could make the information on the MoJ’s website more accommodating and informative for people with disabilities.

Lastly, the new national strategy on legal empowerment could be an important foundation for future work in access to justice. According to FOSM, all relevant institutions and civil society are expected to be involved in creating the national strategy. Furthermore, the action plan notes that the strategy will include specific activities, budget, and a timeline for legal empowerment of all citizens at the national and local levels.

Opportunities, challenges, and recommendations during implementation

FOSM noted that possible challenges in implementing the commitment are a lack of human resources, delays in realising certain activities due to their nature, and possible amendments of the LFLA. However, FOSM believes that all planned activities will be achieved.

This commitment is important for ensuring access to justice for all, as laid out in the law. Its potential to improve access to justice depends on the final amendments to the LFLA, the number of requests for free legal aid, and the number of legal cases that receive expert testimony. It will be important for stakeholders and the government to work together to inform citizens (particularly from socially vulnerable groups) of information about forensic experts and free legal aid.

During implementation, the IRM recommends the following:

● Ensure that amendments to the LFLA adequately address problems that citizens face in accessing free legal aid. It will be crucial to remove contradictory legal provisions as they create legal uncertainties and limit the access to free legal aid, particularly for victims of violent criminal acts. The amendments should ensure the right of access to an expert witness for every person to whom secondary legal aid is granted. The IRM recommends providing opportunities for CSOs and the public to participate in drafting the LFLA amendments, both before and during its adoption. CSOs should also have opportunities to review draft amendments that address legal uncertainties in the current LFLA.

● Work directly with relevant entities to regulate access to experts. The creation of a register of expert witnesses and institutions in forensics is a welcome step to ensure adequate inclusion of this expertise in legal matters. The registry will be especially important if the Bureau of Forensic Expertise is abolished. Molecular biology and geodesy are among the most frequently requested fields for expertise in legal aid cases. If the Bureau is maintained, MYLA and FOSM recommended that the Bureau and the MoJ conclude agreements with relevant entities that provide access to experts and laboratories in these fields, such as Chamber of Authorized Surveyors and the Macedonian Academy of Sciences and Arts. [169] These entities could be involved directly in the implementation of this commitment.

● Support non-court solutions to legal problems. The action plan mentions that there are opportunities to obtain legal aid informally, especially for socially vulnerable groups. The IRM recommends supporting organisations that offer legal aid informally before and after the legal changes take effect. For example, Kenya has committed in its 2020–2022 action plan to implement its Alternative Justice Policy systems, which promises significant change for citizens’ access to justice, especially for marginalised communities through a community-based justice mode. [170]

● Ensure judges are trained on sensitivities involved in cases concerning the socially vulnerable, and are knowledgeable of how to extend free legal aid if necessary. Cases involving free legal aid may require specific knowledge of legal procedures and sensitivities for victims on the part of judges and legal practitioners. Therefore, the MoJ could ensure that judges are trained in sensitivities involved in cases concerning the socially vulnerable and concerning free legal aid. For example, Bulgaria committed in its 2014–2016 action plan to create new judicial training on needs of vulnerable groups and better equip judicial institutions to mitigate social inequality. [171]

Focus on access to free legal aid for migrants and asylum seekers. In addition to persons with disabilities, implementing this commitment could focus on addressing the legal needs of migrants and asylum seekers. The European Commission found in 2021 that there is still no effective judicial control over migrant detention practices and no individuals undergoing an asylum procedure in North Macedonia were granted state-funded free legal aid. [172] Reportedly, decisions on asylum cases tend to be delivered on technical, rather than on substantial, grounds and the process can be lengthy. Therefore, special attention could be paid to promoting free legal aid to refugees and migrants, particularly in asylum procedures. For example, the public registry of legal aid providers could specify which providers have expertise in asylum procedures so that these cases can have an expert assigned to them. The national legal service websites should also have easy-to-understand information on the procedures in asylum cases.