Free legal aid
The Norwegian Civil Affairs Authority deal with appeals against refusals of applications for free legal aid. The processing of appeals is limited to cases dealt with in accordance with the Act Relating to Free Legal Aid § 26, in other words appeals against a regional commissioner’s rejection of an application. Appeals against rulings made in the courts of law must be lodged with a superior court. The Norwegian Civil Affairs Authority also deal with appeals arising from the Regulations governing fees § 13 second part, i.e. appeals against all fee stipulations that are not made by a court of law. Case processing time in legal aid and fee-related cases is approximately 4 weeks.
General information about the arrangement
The objective of the legal aid arrangement is to provide assistance to those who do not have the financial resources to pay for all the costs for legal assistance. The arrangement is regulated under The Act on Free Legal Aid of 13th June 1980 (Legal Aid Act) and under The Regulations on Free Legal Aid of 12th December 2005 (The Legal Aid Regulations). Comprehensive information concerning free legal aid has also been published Circular G-12/05 published by The Ministry of Justice
The Legal Aid Act is supplementary in relation to all other arrangements that provide cover or compensation for legal assistance, in other words all other avenues must be thoroughly explored and exhausted prior to applying for free legal aid. Public institutions will almost invariably have some degree of obligation to provide guidance and advice to those who approach them. In that the public legal aid arrangement is a supplementary arrangement, no free legal aid will be given in place of assistance that is attainable from public institutions. The same applies to legal aid that can be provided under the Criminal Procedures Act’s defence lawyers and counsels for the aggrieved party arrangement, The Administration Act’s § 36, citizens advice bureaus and labour unions, cf. The Legal Aid Act § 5.
Free legal aid can be given as legal advice or free legal representation. Free legal advice is mainly legal advice given out of court, while free legal representation is provided from and including the issuance of a charge or writ. As a general rule, legal aid is provided only to physical persons.
Who can grant free legal aid
All practising lawyers can provide free legal aid. Free legal advice can also be provided by legal advisors. In a number of prioritised types of case the lawyer and legal advisor can themselves grant free legal aid/advice if the client meets with the stipulated thresholds for income and assets, cf. The Legal Aid Act § 11 first and second parts. In other cases, applicants can apply – or the applicant’s lawyer can apply – to the Regional Commissioner, the court or the relevant public authority/office for aid.
Applications for free legal aid
Applications for free legal aid shall as a general rule be sent to the Regional Commissioner of the county in which the applicant is domiciled or is residing in for a longer period of time. Applications for free legal aid abroad must however always be sent to the Regional Commissioner of Oslo & Akershus. In legal aid cases that are ruled on by a court of law or a special administrative body, the application is sent to the nearest court of law or administrative organ that is to hear, or is in the process of hearing or processing the case in question. Please refer to The Ministry of Justice circular G-12/05 section 2.5 for more details about the actual content of the application.
Financial terms and conditions
The basis for free legal aid is that the applicant must not have a gross income of more than NOK 246 000 cf. The Legal Aid Regulations § 1-1. The definition of gross income for the purposes referred to here can be found in circular G 12 / 2005 section 3.1. It is the annual income that forms the basis for calculation. Non-taxable income is not included in the basis for calculation. Information regarding the applicant’s financial situation shall be reported using the self-declaration form, and documented as an enclosure together with copies of the applicant’s tax return form, wage slip or social security payment receipts.
For married couples or others who live together with a joint economy, the joint income and assets forms the basis. The income threshold in these cases is NOK 369 000. The rules on financial identification do not apply to married couples who can document that they are formally actually separated.
Net assets must not exceed NOK 100 000. When assessing high value items, for example a dwelling, leisure home, car or leisure craft, it is the taxable value at the last tax assessment date that is the basis for the assessment. It is however standard practice not to include assets made up of an owner-occupier dwelling or operating assets of normal value when calculating whether the threshold for assets has been exceeded. When a spouse has received a cash share in settlement and all or most of the said sum is used to acquire a dwelling within a reasonable period of time, the cash amount is deemed to be tied up in the dwelling.
Types of cases where free legal aid can be awarded
The Legal Aid Act differentiates between prioritised cases without financial means testing, prioritised cases with financial means testing and non-priority cases. In cases without financial means testing, aid is granted regardless of the applicant’s financial situation, i.e. without financial testing of the applicant’s income and assets.
The prioritised cases with financial means testing are mentioned in The Act Relating to Free Legal Aid § 11 first part, § 16 first part and § 17. These are cases that are of major significance to the individual, for example child welfare cases, cases involving aliens (non-nationals), compensation or redress for unlawful criminal prosecution, claims for compensation against a perpetrator, maltreatment by intimates and forced marriages. There are also cases were coercion is involved and cases concerning conscientious objection to military service and so forth.
An overview of prioritised cases with means testing is provided in § 11 second part section 1-7 cf. § 16 second part. These include among others such cases a marital cases, probate and children, personal injury, unfair or unlawful expulsion or dismissal from a dwelling or employment, compensation for victims of violent crimes and complaints/appeals concerning social payments.
Free legal aid can under special circumstances and as an exception be granted in other types of cases if the case in hand is similar to the prioritised case types or affects the applicant to a particularly high degree, cf. § 11 third part and § 16 third part of the Act.
There is no own share in cases where free legal aid is awarded without a prior means test, i.e. regardless of the applicant’s income and assets. Whomsoever receives means-tested free legal aid, and has a gross annual income of NOK 100 000,- or higher shall however pay an own share of the aid. There is no right of application to have the fixed own share annulled or reduced.
The own share is calculated on the basis of the public fee rate, which from 1st January 2009 is NOK 870.-. In cases involving free legal advice the own share is 1 x the fee, while in free legal representation cases the fee is 25 % of the costs, upwardly limited to 5 x the fee, i.e. NOK 4 350. Value added tax is not payable on the own share.The own share is collected by the lawyer, and the general rule is that the fee is paid in advance.