In recent years, the costs of legal aid have increased significantly due to a surge in cases involving legal aid. Furthermore, the Liechtenstein State Court has decided that the general and unexceptional exclusion of legal entities from the possibility to receive legal aid is contrary to the Liechtenstein constitution and the European Convention on Human Rights (ECHR). These developments required changes in legislation.
As a first step, the report and motion no. 112/2015 brought about cost reductions by way of adjustments of the laws on tariffs for lawyers and implemented the possibility of legal entities to receive legal aid. These changes became effective on 1 January 2016.
As a second step, the report and motion no. 69/2016 now proposes procedural amendments, which complete the revision initiated by the report and motion no. 112/2015. The report and motion no. 69/2016 was passed on 10 May 2016 and comprises the following changes:
A systemic change is envisaged with regard to the competences. Apart from the appointment of the lawyer – which is still the responsibility of the Liechtenstein bar association – all competences in civil and criminal law matters are vested in the court of first instance.
In the future, an application for legal aid is to be filed or put on record in connection with the document instituting the legal proceedings at the court of first instance. This measure is intended to facilitate the assessment of the requirements for legal aid. Simultaneously, it requires the lawyers to accurately advise and instruct their clients prior to filing the application for legal aid. As a result, this facilitates the detection of pointless or even malicious proceedings, thereby reducing cases involving legal aid.
The report and motion also provides that legal aid by way of an appointment of a lawyer shall only be possible in difficult factual or legal situations. In this regard, the court has to carry out a case-by- case analysis. A clearer definition of the term “difficult factual or legal situation” is dispensed with deliberately in order to provide the court with wide discretion.
Furthermore, the report and motion envisages the possibility to impose an obligation to pay instalments in the period during which legal aid is granted. The party receiving legal aid is thus obliged to pay the costs of the proceedings in accordance with its financial standing. Furthermore, this measure also serves to increase the consciousness of the costs of a legal proceeding.
Moreover, the procedure regarding the subsequent repayment of any legal aid received is adjusted. After the end of the legal proceedings, the party receiving legal aid is informed about the outstanding balance due for repayment. This balance consists of those amounts, from which the party was preliminarily exempt, net of any instalment payments it may have made. Simultaneously, the party is obliged to prove its (in)ability to make repayments by disclosing a financial statement. If the party fails to meet its disclosure duties, the law contains a conclusive presumption that the party is capable of making repayments and it is thus judicially obligated to do so. Additionally, the report and motion also extends the limitation period for any repayment claims from previously three to now ten years. The party is thus burdened with a disclosure duty for a maximum period of ten years.
Eventually, the report and motion envisages a broad consistency of the provisions on legal aid in the Civil Procedure Act and the Criminal Procedure Act.