Right to freely choose a lawyer
INTRODUCTION
The focus of this analysis
is on the Legal Opinions of the Supreme Court of the Republic of North
Macedonia ("RNM"), adopted on 23 February, 2015, which refer to the
costs of the procedure in connection with the Law on Civil Procedure. One of
the adopted legal opinions refers to the (non)existence of an obligation for
the opposite party to reimburse as necessary the costs incurred for a lawyer
who has a seat outside the municipality where the seat of the competent court
is located, and in which municipality there are lawyers. The mentioned legal
opinion will be analyzed mainly through the prism of the right to freely choose
a lawyer, as a kind of guarantee for providing effective legal assistance and
effective access to justice, bearing in mind the principle of independence of
the lawyer profession and the principle of trust between the lawyer and the
client.
SUMMARY OF THE
FACTS
The
Supreme Court of RNM, as the highest court in the country, is responsible for
ensuring the uniform application of laws by the courts.[1] Namely, the Supreme Court of the RNM in a general session, inter alia, establishes principled standings and principled legal
opinions on matters of importance for ensuring unity in the application of laws
by the courts, on its own initiative or on the initiative of the sessions of
judges or court departments from the courts, and may also consider issues related
to the work of the courts, the application of laws and judicial practice.[2] This means that the Supreme Court ensures unity in the application of laws by
the basic, appellate and specialized courts in RNM,[3] from which it follows that it has a key role in the process of ensuring uniform
judicial practice.[4] Namely, the Supreme Court of RNM, exercising the previously mentioned
jurisdiction, contributed significantly to the improvement of the level of
legal certainty and the rule of law.
The
Supreme Court of RNM has at its disposal several other tools, which are also
used in order to ensure unity in the application of laws and uniform judicial
practice. One of them is the adoption of legal opinions and conclusions,
regarding legal issues of interest for the uniform application of the law and
unification of judicial practice, within the judicial departments established
in the Supreme Court.
In
this sense, the Department of Civil Law at the Supreme Court of RNM, discussing
legal issues of interest for the uniform application of the law and unification
of judicial practice in connection with the application of the Law on Civil
Procedure,[5] at
the session held on 23 February, 2015, adopted several legal opinions and
conclusions related to the costs of the procedure. One of the adopted legal
opinions, specifically Legal Opinion no. 1, reads as follows: "The
opposite party is not obliged to compensate as necessary the costs incurred for
a lawyer who has his seat outside the municipality where the seat of the
competent court is located, and in which municipality there are lawyers, but he
is only obliged to compensate the usual costs in the amount of those that would
be incurred for a lawyer who performs the activity in the municipality where
the seat of the court is located."[6]
ANALYSIS OF THE
LEGAL OPINION OF THE SUPREME COURT OF RNM
In
the part of the Constitution of RNM dedicated to the guarantees of basic
freedoms and rights, it is provided that every citizen can invoke the
protection of the freedoms and rights established by the Constitution before
the courts and before the Constitutional Court of RNM. In the same part of the
Constitution, the definition of the lawyer profession is also foreseen, and it
is defined as "an independent public service that provides legal
assistance and exercises public powers in accordance with the law."[7]
It
is no coincidence that the creators of the Constitution envisioned the lawyer
profession as a constitutional category, in the form of an independent public
service, precisely in the part of the Constitution where the guarantees of
basic freedoms and rights are determined. Namely, the international legal
community has long recognized and acknowledged the role of the lawyer in
ensuring human rights. In this sense, in 1990, at the Eighth United Nations
("UN") Congress on Crime Prevention and Criminal Justice, the UN
Basic Principles on the Role of Lawyers were adopted. These UN Basic Principles
on the Role of Lawyers were not merely a new announcement of the importance of
the role of the lawyer, but were designed to emphasize and reinforce the
centrality of the legal profession in securing the basic human rights set out,
above all, by the Universal Declaration of Human Rights.
In
order to fully realize the role of lawyers in the protection of human rights,
legal assistance that is effective and not illusory should be provided.[8] However, in order for legal assistance provided by a lawyer to be effective, it
must be carried out independently. This is also recognized in the Preamble of
the UN Basic Principles on the Role of Lawyers, which states that "adequate protection of the human rights and
fundamental freedoms to which all persons are entitled, be they economic,
social and cultural, or civil and political, requires that all persons have
effective access to legal services provided by an independent legal profession.”[9]
The
term independence here means freedom from inappropriate interference by the
authorities or the public, that is, freedom to exercise one's profession
without undue interference. Also, this term indicates the organizational
context that could prevent such pressure. In other words, it can be said that
the concept of independence of the lawyer profession contains two components:
the independence of lawyers as individuals and the independence of professional
associations of lawyers, that is, bar associations.
It
is clear that the principle of independent lawyer profession is a principle
that is recognized at the international level. The UN Basic Principles on the
Role of the Lawyer, in ensuring the basic human rights determined, first of
all, by the Universal Declaration of Human Rights, prove the universality of
this concept as an essential value of international law. The importance that
the international community attaches to the independence of the lawyer profession
derives from numerous international and regional agreements, United Nations
resolutions and the like, as well as from countless national constitutions, for
the reason that it is of fundamental importance to ensure the maintenance of
the rule of law and protection against violation of human rights and freedoms.
It
is in the context of the principle of independent lawyer profession and
effective access to justice that, among other things, the right to freely
choose a lawyer is provided for. Namely, the possibility for the party to
freely choose a lawyer who will represent his rights and interests is a kind of
guarantee for the lawyer's independence from all relevant actors and
stakeholders, bearing in mind that in theory the party will always choose a
lawyer whom he considers to be independent and who would best represent her
rights and interests, that is, who would provide quality and effective legal
assistance, which would enable effective access to justice. On the other hand,
the right to freely choose a lawyer, in the context of the principle of
independent lawyer profession, is simultaneously connected with the right of
the lawyer to refuse to provide legal assistance in cases where there is a
justified reason for doing so.
Another
important principle of the lawyer profession related to the right to freely
choose a lawyer is the principle of trust between the lawyer and the client.
Namely, in order to ensure, among other things, effective legal assistance and
effective access to justice, there must be a relationship of trust between the
lawyer and the client, whereby the relationship of trust can only be achieved
if the lawyer possesses personal dignity, honesty and integrity. These
traditional values for the lawyer are also a professional obligation.[10] In this sense, the possibility for the party to freely choose a lawyer who will
represent his rights and interests is a kind of guarantee for the effectuation
of the principle of trust between the lawyer and the party, bearing in mind
that in theory the party will always choose a lawyer whom he believes possesses
certain qualities that indicate that he can be trusted, that is, which
guarantee that he can be expected to provide effective legal assistance and
effective access to justice.
Considering the above, it can
be argued that Legal Opinion no. 1 of the Supreme Court of RNM from 23
February, 2015, which practically forces the party to a certain extent to
choose a lawyer who has a seat in the municipality where the seat of the
competent court is located, represents a limitation of the right to freely
choose a lawyer, which is inextricably linked to the principle of independence
of the lawyer profession and the principle of trust between the lawyer and the
party, whereby the said restriction has the potential to result in a certain
degree of restriction of the provision of effective legal assistance and
effective access to justice. In addition, if the party still decides to choose
a lawyer from another municipality of its own choice, then she will be put in
an unequal position with the party that chose a lawyer from the municipality
where the seat of the competent court is located. The latter would especially
come to the fore in disputes when the party-plaintiff is from another
municipality (different from the municipality where the seat of the competent
court is located), while the defendant is from the area of the court where the
proceedings are conducted. Namely, as it was mentioned, the relationship
between the lawyer and the client is a relationship based on trust, so in this
sense the party should have the freedom of choice regarding the decision of
which lawyer to hire to represent her rights and interests.
On the other hand, it should
also be taken into account that the determination that the opposite party is
not obliged to reimburse as necessary the costs incurred for a lawyer who has a
seat outside the municipality where the seat of the competent court is located,
and in which municipality there are lawyers, but only that she is obliged to
compensate the usual expenses in the amount of those that would be incurred for
a lawyer who performs the activity in the municipality where the seat of the
court is located, practically puts into an unequal position all other lawyers
who do not have a seat in the municipality where the competent court is
located. Namely, the latter is again brought into direct correlation with the
restriction of the right to freely choose a lawyer, for the reason that a
lawyer who does not have a seat in the municipality where the seat of the
competent court is located, would cost the party more than a lawyer whose seat
is within the municipality where the seat of the competent court is located,
considering that the travel expenses will not be recognized in the procedure.
Again, the latter would be especially emphasized in disputes when the
party-plaintiff is from another municipality (different from the municipality
where the seat of the competent court is located), while the defendant is from
the area of the court where the proceedings are conducted.
Finally, in the context of all
the above, especially the right to freely choose a lawyer, it is also worth
highlighting the distinction between legal assistance provided by lawyers and
for which the costs are borne by the parties themselves and legal aid provided
by lawyers at the expense of the budget, i.e. the free legal aid, where the
costs of the legal aid are borne by the state and it is free for the parties.
Namely, there is space for possibly restricting the right to freely choose a
lawyer, in general, when it comes to legal aid financed by the state. Thus, in
accordance with established international standards and international judicial
practice, in the case of legal aid financed by the state, the right to freely
choose a lawyer may be subject to certain restrictions, given that the state
controls the criteria for awarding and financing the legal aid.[11]
In this sense, Article 6 (1) of the European
Convention on Human Rights[12] and Article 47 of the EU Charter of Fundamental Rights[13] guarantee the right to legal assistance in civil proceedings. This allows
individuals to access justice irrespective of their financial means. In doing
so, legal aid is generally subject to a financial means and merits test.
States can decide whether it is in the interest of justice to provide legal
aid, taking into account: the importance of the case to the individual; the
complexity of the case; and the individual’s capacity to represent
him-/herself.[14]
CONCLUDING
REMARKS
The
competence of the Supreme Court of RNM to ensure the uniform application of
laws by the courts is of exceptional importance in the direction of promoting
legal certainty and the rule of law, whereby it can be claimed that, exercising
the said competence, it contributed significantly to this meaning. It is the
importance of the role of the Supreme Court of RNM to ensure a uniform judicial
practice that mandates a high level of vigilance and a holistic approach in
this process, while the relevant international standards and international
judicial practice must be taken into account.
From the analysis of the Legal
Opinion no. 1 of the Supreme Court of RNM from 23 February, 2015, it can be
concluded that the right to freely choose a lawyer is inextricably linked to
the principle of independence of the lawyer profession and the principle of
trust between the lawyer and the client, while the possible limitation of the
said right carries potential to result in a certain degree of restriction of
the provision of effective legal assistance and effective access to justice. At
the same time, there is space for possibly restricting the right to freely
choose a lawyer, generally, in the case where legal aid is financed by the
state. In view of all the above, within the framework of future activities
aimed at the unification of judicial practice, it would be expedient to take
into account the above remarks regarding the right to freely choose a lawyer
and its correlation with the degree of provision of effective legal assistance and
effective access to justice, bearing in mind the principle of independence of the lawyer
profession and the principle of trust between the lawyer and the client.
[1] Article 101 of the
Constitution of RNM, Official Gazette of RNM no. 52/1991, 1/1992, 31/1998,
91/2001. 84/2003, 107/2005, 3/2009, 49/2011 and 6/2019
[2] Article 37 of the Law
on Courts, Official Gazette of RNM no. 58/2006, 62/2006, 35/2008, 61/2008,
118/2008, 16/2009, 150/2010, 39/2012, 83/2018, 198/2018 and 96/2019
[3] Shkarić, S. and
Siljanovska-Davkova, G., Constitutional Law, Kultura, Skopje, 2007, p.729
[4] Ristić, Ј., The Role of the Supreme
Court in Ensuring Uniformity of Court Practice in the Republic of Macedonia,
Annual of ISPRJ, Institute for Sociological Political and Juridical Research,
University Ss. Cyril and Methodious Skopje, Volume XLI, Number 2, 2017, p.61
[5] Official Gazette of RNM No.
79/05, No. 110/08, No. 83/09, No. 116/10
[6] Supreme Court of RNM,
Legal Opinions, 23.02.2015, available at:
http://www.vsrm.mk/wps/wcm/connect/vsrm/9d63866e-4066-4899-b866-f8eba3e24fcf/%D0%A2%D1%80%D0%BE%D1%88%D0%BE%D1%86%D0%B8+%D0%BD%D0%B0+%D0%BF%D0%BE%D1%81%D1%82%D0%B0%D0%BF%D0%BA%D0%B0%D1%82%D0%B0.pdf?MOD=AJPERES&CACHEID=ROOTWORKSPACE.Z18_L8CC1J41L0B520APQFKICD0CU3-9d63866e-4066-4899-b866-f8eba3e24fcf-lpadyMd
[7] Article 53 of the
Constitution of RNM, Official Gazette of RNM no. 52/1991, 1/1992, 31/1998,
91/2001. 84/2003, 107/2005, 3/2009, 49/2011 and 6/2019
[8] Artico
v. Italy, 13 May 1980, § 33 Series A no. 37
[9] United
Nations, Basic Principles on the
Role of Lawyers, 7 September 1990
[10] Council of Bars and Law Societies in Europe, Code
of Conduct of European Laywers, available at: https://www.ccbe.eu/NTCdocument/EN_CCBE_CoCpdf1_1382973057.pdf ; North Macedonia Bar
Association, Code
of Ethics, available
at: https://www.mba.org.mk/index.php/mk/akti/kodeks-etika
[11] Еuropean
Union Agency for Fundamental Rights and Council of Europe, Handbook on European
Law Relating to Access to Justice, 2016, p.84; Croissant v. Germany, 25
September 1992, § 29, Series A no. 237-B
[12] Council
of Europe, European Convention
for the Protection of Human Rights and Fundamental Freedoms, as amended by
Protocols Nos. 11, 14 and 15, 4 November 1950, ETS 5
[13] European Union, Charter
of Fundamental Rights of the European Union, 18
December 2000 (2000/C 364/01)
[14] Еuropean
Union Agency for Fundamental Rights and Council of Europe, Handbook on European
Law Relating to Access to Justice, 2016, p.58