Where’s my lawyer? Making legal assistance in pre-trial detention effective 5. Romania Main findings and key challenges The institutional and legal framework in relation to pre-trial detention in Romania has not changed since the adoption of the 2014 Criminal Procedure Code (the CPC). Although the Access to a Lawyer Directive has been fully transposed into national law,117 significant issues were identified with regard to its proper implementation. The most important aspect relates to creating the necessary conditions for effective participation of the defence during police/court hearings, which is closely linked to access to the case file in due time.118 The lack in quality of legal aid used to be a major problem in Romania and was directly linked to the low level of fees of state paid legal aid lawyers. In the wake of a lawyers’ strike in February 2019, the fees for legal aid lawyers were raised and new rules for their calculations have been adopted.119 This allowed APADOR-CH and the working group set up for this project to put forward the arguments developed in the action plan during the negotiation around the new Legal Aid Fee Protocol. APADOR-CH released a public statement of solidarity with the legal aid lawyers which became very popular, in which it reiterated the main findings of the working group in this project.120 In the negotiating process, the Bar Association asked the Ministry of Justice for an increase of the fee from 48 to 210 Euros for legal assistance in pre-trial detention. The Ministry of Justice replied to this request by asking for the claim to be substantiated based on objective criteria. The working group, in its meeting on 12 December 2018, followed up on this request by drafting objective indicators. On 14 February 2019, finally, the Ministry of Justice, Public Ministry and the National Union of the Bar Associations adopted a new Protocol concerning the increased fee of legal aid lawyers, including new rules for calculations. The conclusions of the working group and some of its recommendations served as important input in the negotiating process. But despite such positive developments, several key challenges remain: Legal aid: • Legal aid lawyers attending pre-trial detention hearings are often not specialised in criminal law and lack understanding and training in the relevant legal framework and judicial practice required to provide effective assistance to their client. Confidentiality of consultation: • Due to a lack in adequate facilities, the privacy of consultation between lawyers and client is not ensured. Access to case file: • The lack of time for lawyers to consult the case file or communicate with the defendants in detention before the first hearing is problematic. On average, the defence lawyer has 30 minutes to prepare for the initial hearing and many cases were found to exist where the lawyer consults the file and meets the client a few minutes before the hearing. • Complex case files reach the courts without an inventory list, which makes the work of both judges and lawyers very difficult. Although there is an order of the Prosecutor General to provide a copy of an inventory to the lawyer, it is generally not respected. • The possibility of case file restriction by the prosecutor is formulated in broad and ambiguous terms, creating uncertainty as to when restrictions are legitimate. • Whereas studying the case materials is free of charge, photocopying the documents is not and it can be quite costly for a defendant who is in pre-trial detention and has no financial means. Moreover, legal aid does not cover the cost of making these copies. • The CPC does not provide for a consultation of the case file by defendants themselves who are in pre-trial detention, leaving them without possibility to study the case file if they do not have a lawyer, even if they make a request. Imbalance between defence and prosecution: • A strong imbalance between defence and prosecution remains, where the legislation does not provide for the possibility for the lawyer to produce evidence or to probe the lack of validity of evidence during the procedure of pre-trial detention decision-making, with the exception of some official documents which can be briefly presented to the court. 117 Ministry of Justice official letter of 22 December 2017, responding to APADOR-CH’s FOI request. According to it, the EU Directive on the Right of access to a lawyer has been finalised through the adoption of Law no. 236/2017 on modifying and completing law 302/2004 concerning the international judicial cooperation in criminal matters. 118 Report on the implementation of Directive 2012/13/EU on the right to access to a lawyer in criminal proceedings in Romania http://www.apador.org/en/dreptul-la-un-avocatin-procedurile-penale/, APADOR-CH, December 2017. 119 http://www.unbr.ro/protocol-14-02-2019-onorarii-avocati/ . 120 http://www.apador.org/solidaritate-cu-protestul-avocatilor-din-oficiu/. 41