Legal aid

from Wikipedia, the free encyclopedia

The legal aid may in Austria and Liechtenstein of low-income people to carry out not hopeless or wanton civil court proceedings or requested to be criminal defense. Legal aid is borne by the state. It ensures that there is equality of legal protection in the administration of justice and that equal access to the law (according to Art. 6 ECHR ) is achieved.

In Germany , legal aid is referred to as legal aid and in Switzerland as free administration of justice .

At the European level, access for Union citizens is regulated by the EU Legal Aid Directive .

Procedure

Legal aid can be considered for proceedings before the civil , administrative , labor and social courts as well as the criminal courts if a party to the proceedings is unable to pay the legal and court costs, costs for experts or interpreters for the proceedings without themselves or endangering one's own family in terms of maintaining a simple lifestyle.

An application for legal aid for temporary exemption from paying these fees can also be made in proceedings relating to custody and the right to personal contact (formerly known as the right to visit) and if the court appoints a child representative.

In criminal proceedings, the accused or the accused generally bears his own costs. However, if the accused or the accused cannot afford a lawyer as a criminal defense lawyer , there is also the possibility, under certain conditions, of B. in the cases of the necessary defense, in difficult factual or legal situations, when raising an objection to the indictment, for the execution of registered legal remedies, that a lawyer is provided free of charge as a procedural assistant within the framework of legal aid.

A crime victim can also apply for legal aid in order to conduct civil proceedings. Legal aid may be granted to private parties involved in criminal proceedings.

requirements

Legal aid can be granted to any party in judicial proceedings, in principle also to legal persons , if the applicant is not able to conduct the process without impairing the necessary maintenance and the intended process of conduct is not obviously willful or futile. Granting to foreigners or stateless persons is possible. The application for legal aid must be addressed to the court in which the proceedings are pending or in which they are to be brought. In Austria, the application can sometimes be submitted to the competent district court of residence on the occasion of the official day. In addition to the need that has to be proven, the prospects of success of the process to be carried out are also subjected to a preliminary examination . Legal aid is only granted if there is a sufficient chance of success. If the legal prosecution or legal defense only partially has a sufficient chance of success, the legal costs will only be covered to that extent. In addition, the prosecution must not appear willful; it must be a procedure that a sensible person who is not needy would conduct in the same way.

application

The application for legal aid can be made in writing or orally at the competent court.

The legal representative will be appointed by the competent bar association after the court has decided. The applicant can in principle express a request by which lawyer he wants to be represented, which is also complied with as far as possible.

If the application is rejected by the court, however, the applicant himself can appeal.

Effect of the application on the deadline

If the application for legal aid is submitted in good time within the respective period, this interrupts the course of this period. If the application is approved, the period begins to run again in full with the approval of the application (from the delivery of the notification of appointment to the lawyer). If the application for legal aid is rejected, the period begins to run again when the rejection decision becomes final.

Scope of legal aid

The scope of legal aid is generally based on the applicant's actual income and assets. Legal aid can be provided for a specific legal dispute or an enforcement procedure and, depending on the application, includes various benefits (examples):

  • Temporary exemption from
    • Court fees and other federally regulated state fees,
    • Costs of official acts outside the court,
    • Fees for witnesses, experts, interpreters, translators and assessors in labor and social court cases,
    • Cash expenses z. B. the procedural agent.
  • Representation by a lawyer in proceedings that require a lawyer.

If legal aid is granted and the applicant loses the proceedings, the court costs, the costs of the expert or interpreter (if necessary) and the attorney's fees for one's own attorney are covered by the state treasury. If the process is won, the opponent (with exceptions) must bear the legal and procedural costs. If the party that was granted procedural aid loses, it must pay the opponent's legal fees (in certain proceedings, however, these costs can be moderated or waived by the court).

In Austria, the legal aid recipient's own lawyer does not receive any payment from the state for his or her efforts, but a lump sum is transferred to the lawyers' self-administered pension fund.

In Liechtenstein, the lawyer for the recipient of legal aid receives the full costs of his administration from the state through the bar association.

Termination of legal aid

Legal aid generally ends ex nunc with the last possible procedure, with the decision of the court (e.g. if the applicant's financial circumstances have improved), if further legal prosecution appears willful or futile or with the death of the applicant. If a legal representative himself is commissioned (e.g. defense attorney), the legal aid defense also expires.

Legal aid can be withdrawn ex tunc if the conditions for granting it were not met.

Repayment of legal aid

If the financial situation of the applicant for legal aid improves within a period of three years after the dispute has ended, the legal aid may have to be repaid. The court can order the full or partial back payment of the granted benefits, insofar as and as soon as the person obliged to do so is able to do so without impairing the necessary maintenance. This additional payment can also be ordered if a person who has applied for and received legal aid wins the legal dispute in question and thus has sufficient assets. After three years from the conclusion of the procedure, the obligation to make additional payments can no longer be imposed.

European Union

The European Commission has published a proposal for a “ Directive of the European Parliament and of the Council on procedural guarantees in criminal proceedings for suspected or accused children ”. The aim of this directive is to standardize the rights of accused children in criminal proceedings across Europe and to strengthen them at a high level. In particular, for example, children and young people across the Union up to the age of 18 should be given the right to support from a lawyer and interviews by law enforcement officers or the court should be recorded audiovisually.

Private and semi-public initiatives

Initiative of the lawyers in Austria

The bar associations in Austria offer a voluntary service as part of the “first legal advice”. As part of this legal information, an initial free orientation discussion is offered in which help is given with regard to the given legal situation and the further procedure in a specific case. Telephone information is usually not possible.

Participation in this service is not mandatory for lawyers.

Initiative of the notaries in Austria

In every notary's office in Austria, comprehensive legal advice is offered within the framework of the relevant areas of activity of the notaries, whereby the first legal information is provided free of charge.

Initiative of the public accountants in Austria

As part of the “Tax Protection” project, the Chamber of Public Accountants in Austria offers destitute or low-income people the opportunity to take advantage of legal aid in apparently hopeless tax matters. However, there is no legal entitlement to the granting of legal aid and legal persons are excluded in advance, as are willful and hopeless matters.

Requirements: utilization by people

  • who cannot raise the funds required to use a tax advisor without impairing their necessary maintenance,
  • who are confronted with demands of the tax authorities, and
  • that they are helpless to face.

More options

In Austria and Liechtenstein, a large number of private, semi-public and public institutions offer information free of charge to their respective areas of responsibility.

In Austria z. B.

See also

Web links

Individual evidence

  1. ↑ According to § 63 Abs. 4 ÖZPO and § 63 Abs. 2 FL-ZPO this also applies to interveners .
  2. ↑ § 393 Abs. 1 ÖStPO , § 310 FL-StPO . In Austria, an acquitted accused or accused can demand a contribution to his costs of defense (lump sum) according to § 393a ÖStPO, provided he was not entitled to legal aid. In Liechtenstein, according to § 306 FL-StPO, the costs of the proceedings and the defense must be borne by the State of Liechtenstein.
  3. ↑ § 61 ÖStPO, § 26 Abs. 2 FL-StPO.
  4. ↑ Section 67 (7) of the Austrian Code of Criminal Procedure; Section 32 (3) FL-StPO (victims only as private parties).
  5. ↑ In Liechtenstein, legal aid can only be granted to natural persons according to Section 63 (1) FL-ZPO . To what extent this is compatible with Art 6 ECHR is also a matter of dispute in legal teaching in Liechtenstein.
  6. ↑ § 65 ÖZPO, § 65 FL-ZPO.
  7. ↑ § 63 Paragraph 1 ÖZPO , § 63 Paragraph 1 FL-ZPO .
  8. ↑ § 67 ÖZPO, § 67 FL-ZPO.
  9. ↑ See also the exhaustive list in § 64 Paragraph 1 ÖZPO, § 64 Paragraph 1 FL-ZPO.
  10. ↑ In 2012, more than 22,000 cases were carried out by lawyers in Austria as part of legal aid, and about 37 million euros were transferred from the state to the lawyers' pension fund. In 2013, a lawyer was appointed in 22,975 proceedings (15,642 criminal proceedings, 7,333 civil proceedings) and a consideration of around 36 million euros was provided (source: ÖRAK activity report 2014 ( Memento of the original from March 5, 2016 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , p. 26). @1@ 2Template: Webachiv / IABot / www.rechtsanwaelte.at
  11. ↑ § 68 ÖZPO, § 68 FL-ZPO.
  12. ↑ § 69 ÖZPO, § 69 FL-ZPO.
  13. ↑ § 71 ÖZPO, § 71 FL-ZPO.
  14. ↑ See: 822 final, 2013/0408 (COD) , November 27, 2013 and Council of the European Union, Interinstitutional Dossier: 2013/0408 (COD) , 10065/14 DROIPEN 76, COPEN 155, CODEC 1331, May 22, 2014.
  15. ↑ See improved proposal for this directive in: Draft report of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) of the EU Parliament of 19 November 2014.
  16. ↑ In 2012, just over 10,000 cases were processed as part of the first legal advice from a lawyer. In 2013 there were around 9,000 cases.