Antonio Morán (General Council of Spanish Lawyers): ‘Without fair retribution, there is no justice for the less favoured, if there is any, it is due to the efforts of lawyers and Bars’.
Spain is the European country with the most Free Justice cases per 100,000 inhabitants -3,379 compared to an average of 734-, but it is one of the countries that pays the least per case: 178 euros, while the European average is 462. This is the result of the Evaluation Report on European Judicial Systems 2022, carried out by the European Commission for the Efficiency of Justice of the Council of Europe (CEPEJ).
The difference is also notable with other neighbouring countries: Portugal pays 969 euros per case, Italy 1141, France 524.
The report, prepared with data from 2020, establishes the “main trends” of the judicial systems of 44 European countries and three observer states (Israel, Morocco and Kazakhstan).
Antonio Morán Durán, president of the Free Justice Commission of the General Council of Spanish Lawyers (General Council of Spanish Lawyers) and dean of the Zaragoza Bar Association (ReICAZ), analyses this situation in Confilegal and sets out the demands of the legal profession.
“The system is maintained because of the professionalism and vocation of the lawyers we have in Spain, not because of the State’s investment, which is not comparable to that of the countries around us”, he points out. And he draws attention to the need for a new Law on Free Legal Aid to be enacted that provides for payment for the services of public defence lawyers who are appointed, by court order, to represent legal entities, companies.
How do you welcome these data?
These data do not come as a surprise and reiterate what we have been maintaining in the Legal Profession for years: The Free Justice System in Spain is a very broad system in all types of proceedings, that is, in all jurisdictions it is possible to obtain a lawyer with Free Justice, even in proceedings where the intervention of a lawyer is not compulsory but the judge considers that it is advisable to have one.
Faced with this situation, which we defend and which seems to us to be appropriate, there is the circumstance that in the very country where the system of free justice is most extensive, the State’s investment is lower.
And what are the consequences?
Firstly, if the system is maintained with the scope that the laws establish and with the quality with which it is provided, it is simply due to the voluntary nature and vocation of the lawyers in Spain who are registered in the free justice system. There is no other explanation.
So, faced with this situation in which the State is very proud to say that it is “a great guarantor of citizens’ rights”, which is true, however, it places an untenable burden on each and every legal aid lawyer, as we have been warning for years. Without fair remuneration, there is no justice for the underprivileged, if there is any, it is due to the efforts of the lawyers and the Bars.
How do you rate the investment made in Free Justice?
It is meagre.
Spain allocates only 6.9% of its budget to free justice, compared to the European average of 8.8%. Norway devotes 31%. On the other hand, Spain’s investment in the judicial system, 0.37% of GDP, is higher than the European average of 0.30%. Per capita, Spain invests 87.9 euros in justice, compared to the European average of 64.5. What would you say to those who respond to the call for more investment, which is already rising annually?
We are coming from such a precarious situation that even despite these timid increases, and regardless of the fact that a large part of this investment goes to technology – the digital case file, LEXnet and so on – as well as to judicial offices, it is still insufficient. The State is investing more in GDP than the rest of Europe, but because we came from a situation in which we were below what was being done in our immediate surroundings.
This increase that we are making in GDP investment must be maintained and, specifically, more resources must be allocated to free justice. It is unacceptable to maintain these compensations of 178 euros.
In the last report of the Bar Association on Free Justice, we reflect that the average annual investment per citizen increased from 5.16 to 6 euros. However, the average remuneration received by professionals for each case handled fell: 147.87 euros, down from 153.14 in 2020, but higher than the 143 they received in 2019.
A very similar figure to the Council of Europe report, because depending on how you sift the data of what you consider the file and the intervention of the lawyer there may be these small differences. It is a reliable figure.
The conclusion is that the system of free justice continues to be maintained due to the vocation and commitment of the Bars and lawyers. Because, compared to the rest of Europe, maintaining an average of 178 euros per case compared to two thousand and some in Norway or 594 in France, or almost a thousand euros in Portugal, is a situation that is not sustainable.
Although some autonomous communities are investing slightly in updates, it is still not enough.
There are those who describe as “intolerable” the difference in scales between the Ministry’s territory and the communities with competences. For example, Edmundo Bal, from Ciudadanos, who has asked the government to “stop making excuses and pay public defenders”.
This has also been repeatedly requested of the administrations. It is not acceptable that there are communities that make an investment effort to dignify the compensation in free justice and others do not. Here it is the Ministry of Justice itself that does not set an example, as it does not keep the scales updated on a regular basis.
This situation is incomprehensible. However, the citizen, with the legal framework that is common to the whole State, has the same rights to obtain free justice anywhere.
But the lawyer who is going to handle the lawsuit is not in the same situation. How many public defence lawyers are there and how many free justice cases do you deal with?
There are 43,696 duty solicitors and we handled almost two million cases and interventions in the legal aid and free justice system in 2021. Behind these figures there are people in vulnerable situations, people with problems to whom access to justice and effective judicial protection is facilitated.
Is the low remuneration for free legal aid one of the main complaints of the professionals who offer this essential service?
Of course it is. And this is compounded by the fact that the State, through the laws it is publishing, such as Organic Law 8/2021, on the comprehensive protection of minor victims, establishes the need for them to have legal assistance from the outset and this continues without any concrete development and without any kind of scale to assess how these guardianships are to be established.
And how can this be solved?
As this law is already in force, the Bar Associations adopt solutions so that, in the on-call services they have, when the need arises, they designate one of the lawyers on duty and entrust them with the actions required by this organic law. But it is unregulated, undefined. And all the administrations responsible for free justice are obviously aware of this. Both the Ministry of Justice and the corresponding Regional Ministries of the Autonomous Communities with devolution.
In this situation, and as there is always a lawyer willing to provide the service required, they think “Why are we going to worry any more? What we invest in this area is enough and the lawyers and their Associations will solve the problems”.
That is looking the other way. And as long as this continues, the situation of justice will not improve. A good example is the news of Lesmes’ resignation. Either they really take it seriously or else Spain’s image, not only abroad but also internally, is deteriorating by leaps and bounds.
What are the main demands of the Legal Profession?
An update of the Law of the general framework that regulates Free Justice. This law dates back to 1996, it was not a bad law by any means, but the situation has changed a lot socially and legislatively.
From 1996 until now, there have been legal reforms that have modified the framework of Free Justice. Consequently, if the law is modified and the situation is clarified, the amounts will have to be updated. We all want to know what we have to abide by, not only in terms of coverage – in which cases free legal aid can be granted – but also in terms of the requirements and formalities that the administrations are demanding from the Bar Associations, as a control of Free Justice.
More and more data is being requested, which for some time has been generating an internal bureaucracy in the Bar Associations that is making it very difficult to provide as much data as the administration requests.
If the administration wants data for the simple fact of having it, and from there to adopt its positions or whatever, that is a question that has to be separate from what is strictly the provision of the service.
We have to know who provides the service, who is responsible -which is ultimately the College-, and what kind of action has been taken with each specific citizen. But do not ask for much more data.
The Bar Association calls on the different public administrations to reduce the number of bureaucratic procedures that both lawyers and professional associations have to go through in order to provide so much and so diverse data in each of the interventions that the Administration itself could access through other mechanisms.
What further demands do they make?
In addition to duly remunerating legal aid professionals, increasing the scales, but also guaranteeing the remuneration of all legal actions carried out by legal imperative, it is necessary to reinforce the training of the lawyers who offer the service or to create services to attend to prisoners, immigrants and asylum seekers, as well as comprehensive advice for women beyond the framework of gender-based violence.
These services have been provided by the legal profession for years, but without a specific legal framework.
Consequently, it must be regulated, that is, whether or not these services form part of free justice, and that the State should decide this through its Parliament. And if they are provided, the extent to which lawyers and Bar Associations have obligations and what they consist of should be regulated, as well as including the form of compensation for the intervention of lawyers.
Because there are many actions of public defence lawyers that are carried out by judicial appointment and are not covered by free justice, such as the defence of legal persons or mediation…
Exactly. We want clarification of the extent to which the intervention of lawyers is compulsory and compensation.
Have the poor conditions in which duty solicitors have to carry out their work, even for free, led to a drop in the number of lawyers providing this service?
No. There has not been a significant drop. Last year there were 43,300, a few years ago there was a peak of close to 45,000, but we have always been around a third of the practising lawyers in Spain who are assigned to the free legal aid services.
Are many people currently left out of this benefit?
No, we are the country with the widest coverage of free justice. In 2015, the Criminal Code was amended and the criminal liability of a legal person was established, a figure that until then seemed strange. But they forgot, as always – because they always forget about Free Justice – to amend the Law on Free Justice by establishing that the legal person can also, in certain cases, be a beneficiary of the system and, therefore, compensate the intervention of the lawyer in defence of that entity.
Or another mechanism can be sought through the laws it deems appropriate. Thus, it can be established that the legal entity is never a beneficiary of free justice except in cases in which, for example, it is criminally accused and has not appointed a lawyer of its own accord. This is another loophole.
There is also one when a citizen applying for free legal aid does not provide sufficient documentation or data required by the Bar Association and subsequently by the Provincial Commission for Free Legal Aid. The consequence of the above is that the benefit is denied and, nevertheless, the lawyer who is appointed in the Court has to carry on with the case and conclude it without any expectation of compensation.
The system must tend to equate what we call Turno de Oficio with free legal aid in terms of compensation for lawyers, which means that whenever the Bar Association appoints a lawyer to intervene in a legal proceeding, either because it is required by law or because there is a court order, that lawyer must be entitled to financial compensation.
If it is subsequently found that the citizen is not entitled to the benefit of free justice, it will have to be the Administration itself that claims from the citizen the expenses incurred for both the lawyer and the solicitor. And not burden the lawyer from the outset with the obligation to reclaim his fees from the citizen.
So, there must be a principle of universal payment guarantee for the lawyers who provide the service…
Indeed.
Where do you see a greater involvement of lawyers in Free Legal Aid?
In the criminal jurisdiction.
And what appeal do you make to the public authorities?
That they should be sensitive to the importance of the issue. The issue of Justice is not trivial, and neither is Free Legal Aid, of course. But no matter how many petitions are made by the legal profession, there will never be a solution if there is no sensitivity towards free justice and, in general, towards justice. And that is what is lacking. We often notice a lack of sensitivity, a lack of concern to provide solutions to problems that have been occurring repeatedly and for years in this area.
Is there any commitment on the part of the Ministry?
It said some time ago that it was going to modify the Regulation and, consequently, the scale. We are still waiting. Also, more than a year ago, some autonomous communities reported their intention to review the situation, but it seems to be frozen across the board.
The legal aid system is well known and very well evaluated by Spaniards, according to the data obtained from the survey of citizens and users of free legal aid carried out by Metroscopia for the XVI Observatory of Free Justice.
As a State we can be very proud, but it is always at the expense of those who in the end have to solve the daily problems, which are the lawyers themselves, and this is unsustainable.
Altodo warns that the increase in the IPREM is insufficient to guarantee access to free legal aid. Is this another symptom of the lack of interest that you point out on the part of the administrations themselves?
Exactly. They raise the Minimum Interprofessional Wage (SMI), but if they do not combine this with an increase in equal proportions of the IPREM, it creates small pockets of beneficiaries who are excluded from the benefits of free legal aid. And it is precisely those family units that are subsisting on the SMI.
What evidence?
Neglect, because I do not believe that it is deliberately leaving family units in that range excluded from free justice. When any modification is made, any other area is considered, except for what in the end is going to be the ultimate solution to their problems, which is for those who do not have the means to seek legal aid.
The solution is simple: indexing the right to free justice to the SMI and not to the IPREM…
That’s it. It should be borne in mind that as the IPREM is also used for the granting of scholarships or other types of State aid, I have come to think that perhaps they are deliberately not raising it so as not to acquire as many commitments as they would have if they combined it with the SMI. Is that something done deliberately or is it an oversight?
