Legal aid for 800 million Europeans: the Council of Europe efforts

10 April 2001

Gianluca Esposito¹

I. Introduction

Legal aid is an area in which developments at a European level have the potential to assist persons who are in an economically weak position — including Roma — to obtain the effective² services of a lawyer to represent or advise them free of charge. However, public awareness of the possibility to use legal aid, and thereby to have access to the justice system are crucial. This article sets out:

• The theoretical framework in which European developments have taken shape;
• Council of Europe Committee of Ministers Resolutions and Recommendations pertaining to legal aid, including access to legal aid for foreigners;
• Recent developments in the field of cross-border co-operation between member States in the field of legal aid.

Finally, suggestions for measures to facilitate access to legal assistance across borders are elaborated.

II. The theoretical framework

The proper functioning of the judicial system in general and the effective access to justice for all in particular has been of concern to the Council of Europe and its member States for some time. Throughout the years, and within the framework of the intergovernmental activities of the Council of Europe in the legal field, these questions have been dealt with in a variety of ways. Many instruments adopted by the Committee of Ministers reflect the aim of contributing to fairer justice. Some of the measures recommended in these instruments concern the establishment of an efficient system of legal aid and advice. Other measures are aimed at reducing the excessive workload of the courts, for example by encouraging the friendly settlement of disputes, either outside the judicial system or before or during court proceedings. For cases in which litigation is unavoidable, Council of Europe guidelines recommend measures to simplify the procedure whenever possible so as to ensure that rules of procedure in force in the member States do not impede effective justice. Also, the Committee of Ministers’ international legal instruments propose measures to improve the operation of appeal systems and procedures, particularly in civil and commercial cases, where delays are generally greater than in criminal proceedings.

The Committee of Ministers of the Council of Europe may adopt international legal instruments such as resolutions, recommendations and conventions. Conventions are legally binding, resolutions and recommendations, contrary to conventions, are not legally binding, but have an important political and legal impact as they express the direction in which the Governments of member States should move, for instance, to improve legislation in a certain area.

The European Ministers of Justice, at their 23rd Conference in London in June 2000, agreed that “access to justice should not be impaired by high legal costs” and reaffirmed “the need for all persons to have an effective access to justice and for States to find cost-effective methods to provide such access to justice.”³ Indeed, it must be recognised that the principle of the Rule of Law (in the service of which the Council of Europe has been working for more than 50 years) can be realised only if individuals have an effective right in practice to enforce their legal rights and challenge unlawful acts. There is an on-going need for efforts to bring justice closer to individuals and to improve the efficiency and functioning of judicial proceedings, while taking into account the specificities of each jurisdiction.

In practice, legal aid — essential for ensuring equal access to justice for all — signifies more than just the state financing of lawyers for persons living in poverty. It extends to five main areas:

• providing information and legal advice under conditions and at times and locations that suit applicants, with particular attention being paid to clients’ ability to understand what their lawyers are telling them;
• defending accused persons in criminal cases;
• preparing files in non-criminal cases and representing clients. “Non-criminal” cases include not just civil but also administrative and other cases, including ones in which lawyers represent persons such as children and young persons, the sick, prisoners and asylum seekers who are unable to exercise their own rights;
• offering assistance in dealings with public authorities, when a legal matter seems to be at issue;
• providing advice and assistance with regard to the enforcement, or challenges to the enforcement of judgments, sentences or extra-judicial arrangements, including applications for remissions of sentence or pardons.

The situation in States varies considerably as regards the availability of legal aid. In certain European States, legal aid has become too expensive and therefore unaffordable for the States concerned. In many States, reforms are being undertaken to reduce the costs of legal aid and make it “less generous”. In other States, legal aid schemes exist, but are in practice inefficient and do not grant effective access to justice. In other States, legal aid schemes do not exist and have to be set up. In these States, there are more or less serious economic problems which make the establishment of such a scheme difficult. Finally, there are States which have set up a legal aid system completely financed by other States’ voluntary contributions.

The Council of Europe has developed a complex body of case law,principles and rules in the field of access to justice and legal aid, which should inspire national legislators when dealingwith this question. The activities currently carried out by the Council of Europe in the field of Justice and the Rule of Law have shown that in most European countries, the major obstacles to access to justice are the same: complexity, duration and costs. Each of these aspects influences the other. The complexity of proceedings and the slowness which often is the consequence thereof may indeed entail an increase of costs.

Although this article will not deal with the European Convention on Human Rights and its case-law,⁴ its unique value in facilitating access to justice and the protection of fundamental rights to every individual every day within the jurisdiction of a Council of Europe member State, must be stressed. The Convention represents a milestone in international law and is by far the international legal instrument best suited to guaranteeing real access to justice to individuals in Europe.

III. Council of Europe Committee of Ministers Resolutions and Recommendations pertaining to legal aid

A. Legal aid in each country

1. Legal aid for the country’s nationals

Economic difficulties are one of the main obstacles for proper and effective access to justice. Therefore, States should endeavour to eliminate these obstacles to facilitate access to justice. However, the need for States to reduce the costs of justice, while maintaining efficiency, needs to be taken into account in any discussion of legal aid.

The underlying principle for granting legal aid in European countries should be that the provision of legal aid and advice should not be considered charity to indigent persons, but rather an obligation of the community as a whole towards persons in an economically weak position.

The aim of legal aid and advice is essentially the same in all countries, namely to provide legal services for persons of limited means in order to enable them to assert or defend their rights. A report on extreme poverty and economic and social insecurity,⁵ adopted in February 1987 by the French economic and social council, defines poverty in all its complexity, ranging from financial insecurity, or précarité, to extreme poverty. According to the report, financial insecurity arises in the absence of one or more forms of protection, in particular employment, which enable individuals and families to assume their occupational, familial and social obligations and enjoy their fundamental rights. The resulting insecurity can vary in scale, and the seriousness and duration of its consequences also vary. Financial insecurity can lead to extreme poverty when it affects several areas of life, becomes persistent and compromises individuals’ chances of reassuming their responsibilities and re-establishing their rights in the foreseeable future.

Resolution (78) 8 on legal aid and advice contains certain principles concerning legal aid and legal advice which member States should apply progressively. The Resolution states that “no one should be prevented by economic obstacles from pursuing or defending his right before any court determining civil, commercial, administrative, social or fiscal matters.”

On 8 January 1993, the Committee of Ministers adopted Recommendation No R (93) 1 on effective access to the law and to justice for the very poor.

This international instrument recommends that the governments of member States “facilitate access to the law for the very poor (‘the right to the protection of the law’),” “facilitate [their] effective access to quasi-judicial methods of conflict resolution” and “facilitate [their] effective access to the courts.” Attached to each of these recommendations is a — non-exhaustive — list of suggestions about how governments might achieve the relevant objective.

Particular attention is also being paid by the Council of Europe Committee of experts on efficiency of justice (CJ-EJ) to the question of the “actors” in judicial proceedings and, in particular, the role of lawyers. In this context, the Committee finalised a Recommendation on the freedom of exercise of the legal profession, adopted on 25 October 2000 by the Committee of Ministers.⁶ This Recommendation (No. R(2000)21) contains numerous provisions relating to legal aid matters.

Intimately linked to the question of the freedom of exercise of the legal profession is the need for lawyers to make their services available to all sectors of society, and to promote the cause of justice by protecting human rights — including not only civil and political rights, but also economic, social and cultural rights. Indeed, equal access to the law for rich and poor alike is essential to the maintenance of the Rule of Law. It is therefore important to provide effective legal services to all those whose rights and interests are threatened, including persons who are not able to pay for it. The primary obligation to provide these services and to guarantee their quality resides with the legal profession and arises from its independence. However, the State (and the community as a whole) has an obligation to assist the legal profession in carrying out this responsibility.

The provision of legal services for the poor and disadvantaged does not solely include an obligation to represent these persons in court, but includes also the need to educate and counsel them as to their rights, and the ways to defend and secure them. One of the means of reaching this goal could be, for instance, for lawyers to be involved in organisations working in poor communities, informing persons about relevant laws and procedures, through which the members of these communities could protect and promote their rights and, where appropriate, ask for the assistance of lawyers.

2. Legal aid for foreign nationals

In some countries, all foreign nationals are entitled to legal aid on the same basis as nationals of those countries, without regard to their nationality or residence. In other States, habitually resident foreign nationals are entitled to legal aid on the same basis as nationals of those countries; other foreign nationals are entitled to such assistance only if that right has been recognised in international treaties. In a third category of countries, foreign nationals are entitled to such aid only if reciprocity is guaranteed by a convention, legislation or is de facto. Lastly, in a fourth category, reciprocity provided for by inter-State conventions is required.

It is indeed important to pay special attention to foreign nationals resident in the country, as they take part in the economic, social and cultural life of their country of residence and equity demands that they be in a position to assert their legal rights and have the benefit of legal aid when they are in a difficult financial situation.

The Council of Europe has recognised the need to ensure that nationals of Council of Europe member States and other persons normally residing in these countries are treated equally in the granting of legal aid. Resolution (76) 5 on legal aid in civil, commercial and administrative matters recommends that the governments of member States:

“accord, under the same conditions as to nationals, legal aid in civil, commercial and administrative matters, irrespective of the nature of the tribunal exer-cising jurisdiction:

a. to natural persons being nationals of any member state;
b. to all other natural persons who have their habitual residence in the territory of the state where the proceedings take place.”

B. Legal aid beyond frontiers

The European Agreement on the Trans­mission of Applica­tions for Legal Aid

At times, of course, the European citizen is faced with legal problems in a country where he or she does not reside — perhaps while travelling, perhaps because a family member lives there, perhaps for other reasons. For example, a Romani man travelling with his grandchildren from Austria has a car accident in Italy and the children are injured and he has to pay a lot of money in medical care. In such cases, when coming back to Austria, the person may ask for legal aid from the Austrian authorities (in general an ad hoc office in the Ministry of Justice) to bring a case in Italy to try and obtain compensation for damage. This is possible because both Italy and Austria have ratified the European Agreement on the Transmission of Applications for Legal Aid, which enables every person who has his habitual residence in the territory of one of the Contracting Parties and who wishes to apply for legal aid in civil, commercial or administrative matters in the territory of another Contracting Party to submit his/her application in the State where he/she is habitually resident. This Agreement is a binding legal text for those States which have ratified it.

Opened for signature by member States of the Council of Europe on 27 January 1977, the European Agreement of the Transmission of Applications for Legal Aid (ETS 92) is designed to assist persons in obtaining legal aid abroad in civil, commercial or administrative matters. The Agreement may be used by persons who qualify for legal aid and who are habitually resident in one of the countries below, to apply for legal aid in another country listed below.

As of December 2000, the Agreement applied to the following countries: Austria, Belgium, Bulgaria, Czech Republic, Denmark, Estonia, Finland, France, Greece, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom and Azerbaijan. Germany has signed but not yet ratified the Agreement.

Legal aid can take various forms such as the provision of free or low-cost legal advice or court representation by a lawyer, partial or total exemption from other costs, such as court fees, or direct financial assistance for costs such as lawyers’ costs, court fees, etc. With more and more people travelling and the number of disputes increasing, the application of an Agreement of this kind is becoming increasingly vital. Here are some examples of when the Agreement can be used: when an accident happens while a person is abroad on holiday; when a person buys faulty or dangerous goods abroad; or when a separated couple live in different countries and have disputes over custody of children or financial settlements, in the case of matrimonial proceedings where the spouses live in different States. In all these cases, and others, legal advice or court proceedings may be needed. The Agreement gives those in an economically weak position access to justice even in the case of disputes abroad.

The countries listed above have, under the Agreement, agreed to cooperate with each other. These countries have designated transmitting and receiving authorities whose task is to take action on applications for legal aid coming from or going to one another. These authorities are intermediaries who process the requests for legal aid, help in translating necessary documents, give advice, provide lawyers, etc.

The request for legal aid abroad should be made to the authority of the country of residence of the applicant, on the official application form provided by the authorities. That authority will also be able to supply applicants with all necessary information for submitting an application and help to settle any difficulties. Each country has its own conditions to be fulfilled in order to qualify for legal aid and these conditions apply in the same way to applications for legal aid abroad through the Agreement. The great merit of the Agreement is to make it easier for a person on a low income to obtain legal aid in a State which has ratified the Agreement other than the one in which he or she normally resides.

In accordance with Article 7 of the Agreement, the Central Authorities of the Contracting Parties to the Agreement must furnish each other with information on the state of their law governing legal aid. A convention-related committee, the Multilateral Committee on the European Agreement on the Trans­mission of Applica­tions for Legal Aid (T-TA), has been established for this purpose. Its role is to consider problems relating to the Agreement’s application, in order to improve co-operation between the contracting parties.

The T-TA Committee finalised, at its last meeting on 11 September 2000, a draft Additional Protocol to the Agreement, covering such issues as improvement of cooperation between the contracting Parties, provisions to facilitate the communication between lawyers and applicants, the efficiency of the procedure and the non-discrimination between nationals and non-nationals in the availability of the provisions of the Agreement. This Additional Protocol to the Agreement should be finalised and opened for signature in 2001 by the Committee of Ministers of the Council of Europe.

For further information on the Central Authorities responsible for the application of the Agreement in the contracting States contact:

EURODOC
Directorate General I - Legal Affairs
Council of Europe
F – 67075
Strasbourg Cedex.
France

IV. Some suggestions for measures to facilitate access to legal assistance across borders

The effective access to justice is one of the fundamental conditions for the establishment of the Rule of Law. A legal system which takes into full account the rights of individuals would be useless if it was not open to all, and did not work efficiently. States must ensure that individual rights are respected in practice in the administration of justice.

Therefore, measures to facilitate access to legal assistance to individuals across borders can only be welcomed. However, it should be borne in mind that legal assistance does not merely mean States financing lawyers for individuals in need. The acquis of the Council of Europe, mentioned above, as well as the case-law of the European Court of Human Rights, constitutes an important and consolidated basis to improve the way in which legal assistance is provided across borders. To achieve this aim, the following actions could be, inter alia, envisaged:

• the progressive implementation of Resolutions (76)5 and (78)8, Recom-mendations No. R(93)1 and No. R(000)21, as well as the European Agreement on the transmission of applications for legal aid (ETS 92). This will lead, among other things, to (i) non-discrimination between nationals and non-nationals in the granting of legal aid and (ii) the availability of a procedure to apply for legal aid abroad;
• the setting up of law centres in different towns to provide legal assistance and pre-litigation advice to individuals in need;
• the creation of a fee scale for differentiating among varieties of legal aid work. Legal information and advice should be considered of lesser value than court work and thus be paid at a lower rate;⁷ 
• the establishment of efficient Alternative Dispute Resolution (ADR) proceedings, such as mediation, conciliation, etc. And indeed, lawyers who are dealing with a legally assisted case could be paid an additional remuneration if they concluded litigation through friendly settlement; 
• the setting up appropriate rules for the revocation of legal aid, if applicants have significantly improved their financial situation; 
• research into the possibility of alternative means of financing legal aid and advice, such as insurance to cover legal costs. The issue of legal expenses insurance is a huge subject and worthy of separate specialist analysis. Certain European countries make use of insurance schemes to fund litigation and it is significant that where insurance schemes exist, the amount of money devoted by the state to publicly funded legal aid is proportionately much lower. In other words, a degree or correlation exists between legal aid and insurance schemes for financing legal advice. The attraction of using legal expenses insurance is higher in countries which have fixed costs for litigation and fixed remuneration for lawyers.

These are only a few suggestions for actions which could be considered when providing access to legal assistance for individuals across borders, with a view to taking into account the interests of States in keeping justice efficient and not too expensive, of bar associations in providing effective legal assistance and advice to all individuals, including individuals in need.

Indeed, beginning in 2001, following the recommendations of the European Ministers of Justice at their 23rd Conference in London in June 2000, the Council of Europe will launch — on the basis of the above-mentioned acquis — an “action plan aiming at assisting States in setting up or reforming their national system of legal advice and assistance or developing alternatives to legal advice and assistance.” This will include, inter alia, an assessment of the situation in States, country-by-country recommendations and co-operation activities to ensure the proper implementation of these recommendations.

It is in the interest of individuals, of States, and of Europe as a whole, in particular in the light of the high level of social, economic, legal and political interaction that has been achieved to date, to facilitate as much as possible access to legal assistance to individuals across borders.

Endnotes:

1. Gianluca Esposito is Administrator, Head of the Judicial Systems Unit, Private Law Department, Directorate General I – Legal Affairs, Council of Europe, F-67075 Strasbourg Cedex. The opinions expressed in this article are those of the author and do not necessarily reflect those of the Council of Europe. This article is largely based on an intervention by the author at the “Forum on Giving Legal Assistance to Citizens Across Borders” organised by Euro Citizen Action Service (ECAS) and supported by the European Commission Paris, 30 October 2000.
2. See Artico v. Italy A 37 (1980).
3. See Resolution No. 1 on “Delivering justice in the 21st century” adopted by the European Ministers of Justice at their 23rd Conference which took place in London on 8-9 June 2000.
4. 3 See Garland, Gloria Jean, “An Obstructed Path: Roma and Access to Justice” in this issue of Roma Rights on page 30.
5. Conseil Economique et Social français, Grande pauvreté et Précarité économique et sociale, Avis et Rapports du CES, Rapporteur: J Wresinski, Paris, Direction des journaux officiels, 1987.
6. See also Wawrzyniak, N. and G. Esposito, “The independence of lawyers: an essential condition for the protection and promotion of Human Rights and the Rule of Law”, in Human Rights and UK Practice Review, 2000.
7. See in this context, the Rules of Procedure of the Benefits Commission for Bosnia and Herzegovina, which was set up in 1997 by the Council of Europe and the Organisation for Security and Co-operation in Europe (OSCE) (available from The Benefits Commission, Maršala Tita 30, Sarajevo).