What is Legal Aid?
Legal aid is the provision of assistance to low-income people who are unable to afford legal representation and access to the court system. Legal aid is important in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial by indigent people. It is central in giving equality before the law in a democratic society.
Means and Merits Test in Civil Matters
Means Test:
For an applicant to qualify under the means criteria, the person must not possess property of any sort, including disposable money, the net value whereof does not exceed €13,000 for the preceding twelve months. Moreover, the applicant’s income should not, for the period of twelve months prior to the demand for the benefit of legal aid, exceed the national minimum wage for persons above the age of 18. Moreover, in calculating the net value for eligibility account shall be taken of the rent paid for the property used as the main residence, upon presentation of a registered contract according to law and relevant payment receipts; and account shall be taken of the maintenance paid to the other spouse and children, issued by a Court order, upon presentation of relevant evidence of payment. Excluded from the means test assessment are everyday household items that are considered necessary for the use by the applicant and his family, as well as the principal residence of the applicant or any property (both movable and immovable) which forms the subject matter of court proceedings.
Merits Test:
Merits test: For an applicant to qualify under the merits criteria, the Advocate for Legal Aid on examining the nature of the case must conclude that the applicant has reasonable grounds for taking or defending proceedings before the courts, i.e. that the applicant has in his favour a probabilis causa litigandi. Each case is examined on its own merits. The assessment carried out by the Advocate for Legal Aid would include examining the substance of the case, the possible outcome of the proceedings, and the prospect of success.
Means and Merits Test in Criminal Matters
No means and merits test are undertaken in criminal issues.
What Does Legal Aid Cover?
In Civil Cases, legal aid covers expenses related to all court registry and lawyer fees until the case procedures has been exhausted. Legal Aid Malta does not cover expenses related to Court expert reports. During court procedures, no legal aid lawyer can claim payment for services rendered unless after all court procedures have been exhausted and if the legal aid client ‘succeeds in the action, the person shall out of the amount obtained or out of the proceeds of the judicial sale by auction of the movable or immovable property effected in pursuance of the judgment, pay the fees due to the registry, advocate, legal procurator and to the curators and referees, if any, saving his right of reimbursement as against the party who may have been ordered to pay such fees’ (Art. 921 of Chapter 12 of the Laws of Malta).
In Criminal Cases, legal aid covers all the expenses related to all court registry fees, lawyer and experts’ fees until judgment. The judgment may order the client to pay all related fees of the case.
Legal Aid Decision
In Civil Cases, the legal aid decision to process a recourse to the Court is based on the means and merits tests. A client requesting legal aid must satisfy both criteria for an application to be presented to the Court. A person falling short of the means test will not be given an appointment with the Advocate for Legal Aid. Even though a person may pass through the means test but the person does not have reasonable grounds for taking or defending, continuing or being a party to proceedings an application for the benefit of legal aid will not be processed. A person who passes through both tests will take an oath on both criteria on the prescribed application.
In Criminal Cases, all persons are eligible for legal aid and no means test is required by law. A request for legal aid will be made either to the Court presiding the case or orally to the Advocate for Legal Aid.
Appealing a Legal Aid Decision
In Civil cases, if a person has been refused the benefit of legal aid, the decision may be reviewed by the First Hall of the Civil Court (Art. 917 of Chapter 12 of the Laws of Malta).
In Criminal cases, since all persons are eligible for the service there is no appeal for the refusal for the benefit for legal aid.
