Draft
GOVERNMENT DECREE
Approving program and plan of actions
Day ... month.... 2006
Ulaanbaatar
Number...
In order to implement some provisions of Law of Courts and Law on Advocacy, the
Government hereby issues the following decree:
1.To approve National Program of Legal Aid as Attachment 1 and Plan of actions to
implement National Program of Legal Aid as Attachment 2.
2. To oblige D.Odbayar, Minister of Justice and Home Affairs and aimag and Capital
city governors to organize and monitor the implementation of the National Program of Legal
Aid.
3. To add the following article to the Attachment 17 of the Government decree
66/2005 ‘’National Council on monitoring the National Program of Legal Aid - Minister of
Justice and Home Affairs’’.
4. To oblige N.Bayartsaikhan, Minister of Finance to allocate the funds required for
implementation of the Program in each annual budget and within the scope of foreign and
international aid.
Signature
1
Annex # 1
of the Government Decree # …2006
NATIONAL PROGRAM OF LEGAL AID
TO INDIGENT CITIZENS
One. Current Situation and Challenges
From its inception, the legal reform in Mongolia has attached importance to the
establishment of a legal mechanism that provides free legal aid to citizens.
The Constitution of Mongolia guarantees the right to defense and legal assistance and
the right to appeal to the court for protection if one considers rights and freedoms spelt out by
the Mongolian law or an international treaty to have been violated (Article 16.14) and the
rights of the accused to defense and legal assistance according to law and at his or her request
(Article 55).
A number of laws have been passed including the Law on Court, Law on Advocacy,
Criminal Procedure Law, Civil Procedure Law, and the Law on Administrative Procedure
following the Legal Reform Program approved by the Parliament in 1998 which envisages
the necessity of reforming the legal aid mechanism, developing legal grounds for private law
firm networks, and improving regulation of legal representation and function of legal agents
in the entire criminal, civil, and administrative procedures.
The Criminal Procedure Law (Article 39) provides that a suspect, accused, defendant
and victim shall have the right to select their defense counsel themselves; with the consent or
request of a suspect, accused, defendant or victim, his/her legal representative, member of
family, or relative may select a defense counsel for him/her. When suspect, accused,
defendant or victim has not selected a defense counsel, upon their request, the inquiry officer,
investigator, procurator, or court shall ensure participation of a defense counsel in the
criminal proceedings. The Law on Court similarly secures the right of a defendant and other
persons having their rights and freedoms restored by the court to defend oneself or to have a
defense counsel.
In most cases, the poor and indigent individuals are unable to exercise these rights.
According to the statistics of population living standards of 2003 by the National
Statistics Office, 36% of the population lives in poor and extremely poor condition in
Mongolia and approximately 80 percent of the detainees or convicted were found poor,
extremely poor or uneducated, and unemployed. Individuals falling within the vulnerable
groups often become involved in crimes due to their having no sources to pay and the number
of crimes committed by the indigent increased to 10153 in 2005 and 7206 persons or 70
percent of them was not capable of payment.
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The Law on Court (Article 9) and the Law on Advocacy (Article 21) specify that the
state shall provide free legal aid for the indigent. The named legal acts set out that the state
budget shall be allocated and shall be transferred to the Mongolian Advocates Association
whereas a Minister responsible for justice shall approve and supervise the implementation of
rules and regulations related to the payment and spending of the budget. In accordance with
that 9 million in 2002, 9 million in 2003, 12 million in 2004, 2005 and 2006 were allocated
from the state budget to the Mongolian Advocates Association.
According to the Decree 69/2003 by the Minister of Justice, the standard tariff for
legal service for the indigent are; minor case 12600, less severe case 21600, severe case
28800, and for grave case 43200 tugrugs. Under the Law on Advocacy, lawyers are obliged
to provide a free legal aid twice a year for those, who are not capable of payment. However,
due to the low tariff of legal service, particularly in minor and less serious cases, lawyers are
not motivated to perform and they regularly refrain from providing free legal aid.
Approximately 1100 out of 1300 lawyers, by August 2006, were based in the capital
city and the lack of professional lawyers in the rural areas makes it impossible to exercise
their right to free legal aid in those places.
In May 2005, Ministry of Justice and Home Affairs jointly with United Nations
Development Program (UNDP), and Open Society Forum conducted a study “Accessibility
of the legal information, propaganda and assistance” in Arkhangai, Darkhan Uul, Omnogobi,
Khovd, Khuvsgul, Khentii aimags and 7 districts of Ulaanbaatar, which covered 1,200
inhabitants with the purpose to define the future forms and methods of legal aid.
Even though people have low level of familiarity with lawyer’s aid, the importance of
lawyer’s involvement was assessed as relatively high. The findings indicated that 41.0 %
found lawyer’s involvement as “very important’, and 37.3% as ‘important”.
84.1% of the participants never received lawyer’s services. When they were asked for
the reasons, the majority of the participants answered that service charge were high. From
above findings, it can be concluded that individuals can not exercise their rights provided by
the Constitution due to the cost of legal service.
Implementation of legislation to provide free legal assistance to vulnerable groups is
poor. This could be attributed to the unsatisfactory organization of the implementation of the
concerning legislation, non-existence of the liability system of the oversight over the quality
of the advocates’ work, as well as to the extreme scarcity of funding allocated for the legal
assistance.
Since 1999, several legal clinics have been run by universities and colleges such as
“Humanity” under the School of Law, National University of Mongolia, “Charity” under
Shikhi-Khutug Law School, and “Street Law” under the University of Education. These legal
clinics employ senior law students under the supervision of their professors to offer free legal
assistance to the disadvantaged.
In addition, there are many NGOs for instance Human Rights and Development
Center, National Center Against Violence and Mongolian Women Lawyers’ Association to
provide free legal advice and assistance for the public.
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Therefore, it is crucial to coordinate these efforts, roles of non-governmental
organizations and legal clinics in provision of free legal aid to the indigent, education of these
people about their rights and freedoms in simplest possible way in order to empower them to
stand for their rights.
In order to prepare the concept for reform of the legal aid system and develop
recommendations for organization, management, structure and the mechanism for delivery of
free preliminary legal aid in the country, Ministry of Justice and Home Affairs and Open
Society Forum jointly set up pilot Legal Aid Centers with salaried lawyers in
Songinokhairkhan district on May 10, 2004 and Khentii aimag on June 1, 2004.
These Centers provide free legal assistance in each and every case, such as meeting
with the client and their family members in the pre-trial detention center or at the center and
provide legal advise, participating in interview with the suspected and accused persons,
questioning and gathering evidence about the personalities of witnesses and victims and
taking measures about the clients’ health. In comparison with the appointed lawyers, the
quality of the legal assistance at these centers is much different.
Permanent operation of the Legal Aid Centers in these territories can have positive
results in the crime prevention, conducting legal propaganda, establishing appropriate system
of providing legal information and assistance as these centers are in permanent contacts with
the administrative bodies of the territory and non-governmental organizations with similar
purposes and other law enforcement agencies.
As for the cost of the cases: in minor crimes 10,725 togrog, in the less serious crimes
17,325 togrog, in the serious crimes 24,240 togrog and in the extremely grave crimes- 39,930
togrog, which, compared to the current standards, is relatively low and demonstrates that
professional, high-quality legal assistance can be provided at low cost.
Though the permanent operation of the Legal Aid Centre, each individual receives
quality services and the resolving of cases is speeded-up. It also promotes swiftness of the
work of courts, police and prosecutor’s office, reduces expenses and plays an important role
in the protection of individual rights during criminal proceedings.
Legal counseling provided at the Centre is proven to be efficient to raise public
awareness on the laws and on their rights and duties provided by the law.
According to the survey on public opinion on ways of delivering free legal aid to poor
people, 64.6% of the participants answered that there is a need to establish a separate
institution; 27.1% said a particular governmental official or an government agency shall be in
charge of this issue,;8.3% answered we do not know. These indicate that citizens support
establishing” a separate institution” to provide free legal aid to the indigent.
Moreover, 80% of participants of the above survey referred to the “Legal aid center”
as an institution, which can effectively provide free legal advice to the public.
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The Government needs to pay more attention to education, training and re-training of
lawyers and roles of their organizations in order to improve the quality and effectiveness of
free legal aid to the indigent.
Moreover, it is important to increase the funding of the free legal aid for the indigent
and to specify an agency that shall be responsible for allocation, spending and administration
of the funds.
Based on the above situation it is essential to establish an independent system to
provide free legal assistance for the indigent, and to have a specific policy to make decision
and to implement it, as well as to set up ‘’Legal aid centers’’ in all aimags and districts.
Two. Program Goal
2.1. The goal of the National Program on Legal Aid to the Indigent is to implement
set of actions in order to set up an effective mechanism to provide free legal aid to the
indigent in all phases of criminal proceeding, and to improve accessibility and quality of legal
aid, as well as legal literacy at community level.
The overarching goal of the National Program is to set up a national legal aid scheme to
ensure efficient and equal access to justice, irrespective of the financial status of the person.
Three. Program Objectives
3.1. The following objectives will be reached under the National Program:
3.1.1. Setting up a National Council in charge of legal aid for the indigent, as
well as responsible for the informal legal training and awareness raising policy
implementation and coordination;
3.1.2. Improving the efficiency and quality of free legal aid delivery, legal
awareness raising, informal legal training, by optimal form in Mongolia within
the framework of the National Program and introducing public defender model
in delivering free legal assistance to the indigent or replication of legal aid
centers nationwide;
3.1.3. Making recommendations concerning the development of specific legal
framework to regulate the relations pertaining to provision of free legal aid to
the indigent;
3.1.4. Developing quality and monitoring standards pertaining to legal aid to
indigent, and the criteria to recognize as an indigent, as the current
requirements do not meet the expectation;
3.1.5. Exploring possibilities to create a special fund to provide free legal aid
for the indigent;
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3.1.6. Supporting the Mongolian Advocates Association, non-governmental
organizations, and legal clinics in the provision of free legal aid to the indigent
and coordinating with the national legal aid system;
3.1.7. Improving the efficiency and quality of services to provide preliminary
legal information, advice and legal literacy in rural areas.
Four. Principles and Concepts of Program.
4.1. The principles of the implementation of the National Program shall be based on
the state socio-economic policy and Government actions, active participation of nongovernmental organizations, legal clinics, and the Mongolian Advocates Association,
coordination of their activities and efficient allocation of resources.
Five. Program Scope and Overview of Activities
5.1 Setting up a national institution in charge of provision of legal aid for the
indigent; responsible for developing informal legal training, awareness raising, and
legal aid policy, its implementation and coordination;
5.1.1 A national council will be created comprising the Ministry of Justice and
Home Affairs, the Mongolian Advocates Association, legal clinics and
relevant non-governmental organizations that are in charge of the provision of
free legal aid to the indigent. The council will be independent, non-full time,
and chaired by the Minister for Justice and Home Affairs.
The national council will have following functions:
-Development and implementation of legal aid, legal awareness raising and
informal training policy; making recommendations; ensuring the collaboration
of the relevant bodies and coordinating their activities; rendering financial
support, creating and monitoring a specific fund for this purpose;
-Establishing legal aid centers and identifying future prospects of their
activities and overseeing the management of the legal aid centers
-Identifying main direction and future prospects of activities and
providing preliminary legal advice in rural areas;
- Facilitating condition for public defense and preliminary legal advice
in rural areas;
- Developing necessary legal acts, regulations, and recommendations
for free legal aid
- Establishment of quality standards and monitoring procedures of free
legal aid in cooperation with the legal aid centers;
- Developing criteria for indigency determination;
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- Analyze comprehensively the implications of various legal institutions
in ensuring access to legal assistance for the indigent and make
recommendation for improvement;
- To submit the free legal aid budget for adoption
- To search for possible assistance and contribution by international
organizations in order to implement the program
- Developing payment criteria and procedures for the private legal aid
lawyers;
- Cooperating with representatives of branches of Advocate’s
Association, in areas where no legal aid centers are available, to
coordinate and deliver free legal aid;
- Collecting and analyzing data related to provision of free legal aid to
the indigent;
- Management solutions for the effective use of human and financial
resources.
5.2
Within the framework of the National Program facilitate free legal aid
delivery by optimal form in Mongolia, and introducing public defender model in
criminal cases or replication of legal aid centers nationwide;
5.2.1
The legal aid centers will be established to provide free legal aid to indigent
defendants in criminal proceedings, and preliminary legal advice in criminal,
civil and administrative cases in rural areas.
5.2.2
To explore all possibilities to create the legal aid centers nationwide, and
facilitate to get assistances from foreign and domestic organizations.
5.2.3
The center will have full-time lawyers (public defenders). Lawyers of the
centers will be selected upon open competition and will be contracted with the
National council.
5.2.4
Preliminary legal advice in criminal, civil and administrative cases in rural
areas will be provided by legal officers of the Local Governors’ Office.
5.2.5
The center will have 1-3 lawyers and 1 legal officer of the Local Governors’
Office. Number of lawyers of the centers will depend upon population
density, crime rate and number of indigent defendants.
5.2.4 Legal aid centers will conduct following functions:
-
Delivery of free and qualitative legal aid to indigent defendants;
-
Providing preliminary legal advice for civil, criminal and administrative cases;
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-
Carrying out informal legal trainings;
-
Collection of statistical data of free legal aid and submit and report to the national
council ;
-
Carrying out the means test;
-
Appointment of lawyers in legal aid cases;
-
Contracting private lawyers in cases of case overload or other necessary situation;
-
Monitoring the quality of public and private legal aid lawyers.
5.3 For the development of legal acts to regulate the relations deriving from the
provision of free legal aid to the indigent:
5.3.1
To develop, adopt and implement relevant laws and legal acts that regulates
establishing national council responsible for legal aid, implementation of
policy measures of the National Program by the national council, legal status
of public defenders, ways and rules related to provision of legal aid, and
outreach target of free legal aid;
5.3.2
By these laws or legal acts to create a unified mechanism of legal aid activities
for the indigent while making a clear distinction between legal aid delivery
function and management or administrative tasks.
5.4
In relation to upgrading methodology in order to review the current criteria
identifying the indigent:
5.4.1 To develop quality and monitoring criteria of free legal aid in cooperation with
the legal aid centers and to ensure that it is adopted by the competent authority;
5.4.2 To make the data about the total number of the indigent people available;
develop new criteria for indigency test based on experiences of other countries and
organizations since under the current system there are complications to have a
verification made by local governors of bag, khoroo, sum and district and to take
measures to include it in the law.
5.5 In connection with exploring possibilities for creating a financial source to
provide free legal aid for the indigent:
5.5.1 To ensure that the program is implemented with financial supports international
organizations, state budget and non-governmental organizations.
5.5.2 The National council shall expand services of defense of the legal aid centers
and legal advice in rural areas with assistance of international organizations, estimate
total expenses needed from the state budget to provide legal aid to the indigent; based
on that estimation explore possible funding from the state budget, international,
foreign organizations and NGOs for support;
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5.5.3 Regulations and procedures related to subsidizing lawyers should be revised in
order to eliminate complications and secure the payment
5.6 With regard to supporting and coordinating the activities of Mongolian Advocates
Association, non-governmental organizations, and legal clinics in the provision of
free legal aid to the indigent;
5.6.1 Use of legal clinics resources; a systematic involvement of senior law students
and new graduates in provision of legal aid to the indigent;
5.6.2 Exploring possibility of setting up legal clinics under each law school;
5.6.3 Promoting NGOs operating in area of justice; exploring possibilities to review
and revise the laws related to legal representation and taxation;
5.6.4 Mainstreaming work of advocates’ organizations and NGOs towards better
public legal literacy particularly the right to legal aid;
5.6.5. Within this framework, a specialized training on lawyers’ skills, duties and
importance related to the defending the indigent individuals will be conducted.
5.6.6. To expand pro bono legal aid to the indigent in cooperation with the Mongolian
Advocates Association.
5.6.7. A manual will be developed for lawyers, officers of non-governmental
organizations and law school students who provide legal aid to the indigent.
5.7. In the direction of improving services of legal information and preliminary legal
advice in rural areas:
5.7.1. To introduce paralegal services to improve services of legal information
and preliminary legal advice in rural areas
5.7.2. To organize awareness raising campaign and offer legal advice to citizens
in rural areas and to cooperate with the aimag and district governors office in
this respect.
5.7.3. To train the officers to provide legal advice and training in rural areas and
develop guidelines and standards of performance.
Six. Program Duration
6.1. The National Program will be implemented in two phases until 2012:
Phase 1. Year 2006-2011. The following steps will be taken:

Within the framework of creating national optimal system, National council will be
established in the first quarter of 2006;
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
Drafting and adopting relevant laws and legal acts;

Setting up the legal aid centers in other aimags and districts;

Selecting lawyers in the position of public defender through open competition, and
make contract with them;

training and contracting with persons, who will be providing preliminary legal advice
in criminal, civil and administrative cases in rural areas and developing a guideline;

Coordinating activities of legal aid centers and legal advice, training to public in rural
areas;

Training the officers to provide legal advice and training in rural areas and develop
the guidelines and standards of performance;

In cooperation with the legal aid centers to develop quality and monitoring criteria of
free legal aid;

Developing criteria for indigency determination and means test;

Setting scale of the salaries and budget of the legal aid centers;

Developing payment criteria for the private legal aid lawyers;

Setting up a specific fund on the deposit of various funds from the state budget,
projects, and contributions to finance legal aid to the indigent.
II stage - 2012.

All steps required for the quality, efficient and stable operation of the centers
will be taken.

The funding of the legal aid center will be solved.
Seven. Program Outcome
A successful implementation of the National Program will create favorable legal
environment in Mongolia for the legal aid for the indigent and facilitate better administration
and supervision of such a mechanism.
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Annex # 2
Government Decree
2006
PLAN OF ACTIONS TO IMPLEMENT NATIONAL PROGRAMME OF LEGAL
AID TO INDIGENT
n/n Objective
1.
Action
Timing
To establish a national Establish National Council in charge of legal aid to
system of legal aid and indigent people
setting up of legal aid Set up Legal aid centers, stabilize their operation,
centers
conclude agreements with the local advocates
Provide the advocates, who work with the indigent
individuals, with office space, ensure their working
conditions, and establish the liability system to
assess their work.
Stabilizing the activities of the Legal aid centers
2006
20062012
20062012
2012
2.
To develop a draft law
on free legal aid to
indigent and to submit
for adoption
Improve the legislation concerning the free legal 2006aid system; organize the policy steps included in 2008
the Programme; draft and have enacted an act of
legislation defining the forms, rules and scope of
the legal aid and ensure its implementation.
3.
To
improve
methodology
for
recognizing as indigent,
set the standards for the
quality
of
legal
assistance and those for
inspection.
Set the standards for the quality of legal assistance 2006and those for inspection jointly with the legal aid 2008
centers.
4.
Compile a register of total indigent individuals,
develop indigency criteria by studying foreign and
domestic experience, and take steps to include them
in the law.
To
research
the Make preliminary estimates of the expenses
financial issues of free required for the free legal aid, and research the
legal aid to indigent
possibilities for obtaining financial support from
the budget, foreign, international and nongovernmental organizations
With the purpose of establishing a cost-saving
system, work in partnership with the nongovernmental organizations able to provide
voluntary primary legal assistance
Create a special fund with funds provided from the
state budget, projects, aid funds, and establish a
system of payment from the fund of advocate fees
immediately upon provision of legal aid.
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Authority
in charge
MJHA
National
Council and
MJHA
National
Council,
MJHA,
UMA, MF
National
Council,
MJHA
National
Council,
MJHA
National
Council,
MJHA
20062008
National
Council,
MJHA, MF
20062011
National
Council,
MJHA,
UMA
National
Council,
MJHA, MF
20062008
5.
6
To
promote
the
activities of the UMA,
NGOs and legal clinics
concerning free legal
aid to indigent and
ensure coordination of
their activities
Use the resources and possibilities of legal clinics, 2006consistently organize wide participation in the 2012
providing of legal aid of the graduate law students
MJHA,
Legal
clinics
Research the possibilities of setting up legal clinics 2006at all law schools
2008
National
Council,
MJHA, Law
schools
National
Council,
MJHA,
UMA
National
Council,
MJHA,
UMA
National
Council,
MJHA,
Governors
National
Council,
MJHA,
Governors
Develop a manual for the advocates providing
defense to the indigent individuals and for the
employees of NGOs and law school students.
20062008
Conduct a specialized training in the special skills,
duties and importance related to the defending of
the indigent individuals
20062009
To improve the legal Introduce paralegal services to improve the primary
information
and legal information and assistance services provided
primary legal assistance in the provinces
services in the province
Organize legal information and assistance services
to the individuals in the provinces jointly with the
offices of aimag and district governors
Develop guidelines and standards for the legal
assistance and training to be provided to the
individuals in the province
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20062012
20062012