Legal Representation in Civil Proceedings, as Human Rights Protection Measure, in Different Jurisdictions

Szendrei Tamás
Szendrei Tamás

1. INTRODUCTION

Legal aid is one of the fundamental guarantees associated with the right to a fair trial embodied in international human rights treaties.

In a general sense, legal representation describes that a party is accompanied during court proceedings, guided and of course represented by a licensed legal professional, like a lawyer, solicitor, barrister or advocate in civil, criminal or administrative court proceedings. If legal representation in a court proceeding is mandatory, representation usually is linked to the right to be heard by the court and the ability to invoke certain procedural rights pursuant to the applicable code of procedure.

Legal aid, as a necessary pre-condition inherent in the guarantee of equality before the law has more than a hundred years since it has been claimed in Europe. The right to counsel (poor man’s right) has a long tradition in civil procedural codes of Continental Europe, it was already granted under enlightened absolutism of the 18th century. At the end of the 19th century it was mainly seen as a right to criminal defence, but already in the second decade of the 20th century this was extended to at least waiving court fees and subsidizing lawyer fees in civil and other courts, too. But so far legal aid only referred to cases where the procedural codes declare mandatory representation by an advocate.[1]

The unmet demand for legal aid generally and for criminal law matters in particular, has grown in tandem with the expansion of crime control and increased restrictions on funding for publicly funded welfare and support services.

In this paper, I will try to examine the connection between legal aid, mandatory legal representation and the right to a fair trial.

First of all, in order to understand the question in topic, we have to take a general look at the meaning of mandatory professional legal representation in court procedures. Generally speaking, legal representation describes that a party to court proceedings is accompanied, guided and of course represented by a licensed legal professional, like a lawyer, solicitor, barrister or advocate in civil, criminal or administrative court proceedings. If legal representation in a court proceeding is mandatory, representation usually is linked to the right to be heard by the court and the ability to invoke certain procedural rights pursuant to the applicable code of procedure.

The opposite of litigation with mandatory representation by a professional is a procedural system in which private individuals are able to participate in court proceedings without professional guidance by lawyers. The most common legal terminology for such a scenario is “per se litigant” or “litigant in person”. It is based on the simple thought of personal freedom and self-responsibility in any circumstance of life. In contrast, jurisdictions based on Roman Law System, consider the mandatory legal representation in court to be a prerequisite for effective court proceedings, the individual’s success in litigation and thus ultimately, for justice.

The reason for this clearly lies on the notion of equality under the law, which as stated previously, is a commitment to equal justice, a core legitimacy of democratic processes and modern jurisprudence.[2] Under such circumstances, opportunities for legal assistance are crucial to the legitimacy of the justice system. Not only does access to legal services help prevent erroneous judicial decisions, it also affirms a respect for human dignity and procedural fairness that are core democratic ideals.[3]

However it is very difficult to generalize and to discuss the issue of mandatory legal representation as one. It is desirable to avoid thinking in black and white in this topic, and to make the necessary distinctions.

Representation by someone else than the party itself does not necessarily mean representation by a member of the bar. Being a member of a bar and being a professional lawyer is not necessarily the same thing – unless the provision of legal services in a jurisdiction and/or the representation of a party in court proceedings against payment is only lawful for a member of the bar. While in some jurisdictions this is the case, in others it is sufficient to hold a law degree or to be deemed “competent” by the court. Things get even more complicated when you take into consideration that a legal system can further distinguish between different instances within a court system or between different court systems as such. It may, for example, be necessary to employ the services of a lawyer before a regional court or a Court of Appeals, but not so before a local court which has jurisdiction for low-value claims. Or the approach is different for civil courts and, say, administrative or tax courts – maybe because they follow different procedural rules, with one court system being inquisitorial in nature and the other more contradictory, maybe because one system, for historical reasons, is a court in the traditional sense whereas the other is more akin to a tribunal.[4]

2. LEGAL AID AS VIEWED BY THE ECHR AND EU CHARTER OF FUNDAMENTAL RIGHTS

Article 6 of the European Convention on Human Rights (ECHR)[5] guarantees the right to a fair trial in both civil and criminal proceedings. This has been interpreted as providing for a general requirement of some measure of “equality of arms” between the state and the individual or between the parties in the case, and the overall structure of the paper, as well as the case law of the Court, stresses the vital connection between the right to legal assistance and the general interest in guaranteeing the right to a fair trial. The Court determined that this right applies to cases where such assistance proves indispensable for effective access to the courts, either because legal representation is mandatory under domestic law or because of the complexity of the procedure or the type of case. The Court noted, however, that the right of access to the courts is not absolute and may be subject to legitimate restrictions, including the imposition of fees and the requirement that the case be well founded. The right to legal aid, however, has been extended through jurisprudence to cover cases where its absence would make any equality of arms illusory or effectively deprive an applicant of access to the proceedings.[6]

A crucial element of access to justice is the effective availability of the services of a lawyer. For people of inadequate means to the right to legal aid is an essential component in securing their right of access to justice, either in pursuing or in defending a case.

In criminal cases, the lack of effective protection of the right to legal aid may prevent those who cannot afford the service of a lawyer from exercising their procedural rights and may reduce their opportunity to influence the outcome of the proceedings when their liberty is at stake. In civil cases, the lack of accessible mechanisms for resolving legal disputes prevents citizens from protecting and asserting their civil, economic, social and cultural rights. In both criminal and civil cases, the lack of access to justice results in reduced public confidence in the legal system, which is indispensable for every democratic state rooted in the principles of the rule of law, human rights and democracy.[7]

Under ECHR law, legal aid does not have to take a particular form; states are free to decide how to meet their legal obligations. As a result, legal aid systems often vary widely.[8] For instance, legal aid may consist of free representation or assistance by a lawyer and/or dispensation from paying the costs of proceedings, including court fees.[9] These arrangements can exist alongside other complementary support schemes, such as pro bono defence, legal advice centres or legal expenses insurance – which may be state funded, run by the private sector, or administered by NGOs.[10]

Concerning the European Union as such, since the entry into force of the Treaty of Lisbon, the EU Charter has bound the EU institutions. Access to legal aid is an important part of the right to a fair trial, not only under Article 6 of the ECHR, but in the present, under Article 47 of the EU Charter of Fundamental Rights. The right to legal aid ensures effective access to justice for those who have insufficient financial resources to cover the costs of court cases, such as court fees or costs of legal representation even implicitly, the need to provide for legal aid can be drawn from some other dispositions of the Charter such as Art. 48 (2), which states that “Respect for the rights of the defence of anyone who has been charged shall be guaranteed”. Furthermore, the respect for the right to legal aid guaranteed by article 47(3) of the EU Charter has to be understood in light of the ECtHR case-law, which contributes to add to the strict procedural side of legal aid a more substantial element.[11]

The Explanations to the Charter, which serve as an interpretative tool to help understand its content, but are not legally binding, provide guidance on this point. The rights protected in the ECHR and the EU Charter of Fundamental Rights overlap. This overlap means that ECtHR case law is frequently important for interpreting rights under the EU Charter of Fundamental Rights. Charter rights that correspond to ECHR rights are given the same meaning and scope as those laid down in the ECHR, in accordance with Article 53 of the Charter.[12]

Article 6 of the ECHR has limited scope and only applies to cases concerning criminal charges, civil rights and obligations recognized in domestic law (see Section 2.1). Article 47 of the EU Charter of Fundamental Rights is not as confined and applies to all rights and freedoms recognised by EU law, which include certain additional economic, social and cultural rights. However, there is an important difference in terms of applicability. Article 6 of the ECHR applies to all situations falling within the definition of “criminal charges or civil rights and obligations”. Article 47 of the Charter only applies when Member States are applying EU law. It thus provides a less comprehensive system of protection. Many rights in the EU Charter of Fundamental Rights are described similarly to rights in the ECHR.[13]

3. LEGAL AID IN CIVIL (NON-CRIMINAL) PROCEEDINGS

An entitlement to free legal aid in civil cases has been slower to emerge, than in case of the criminal ones. It has been discovered by the Court in cases where the absence of legal support would make any equality of arms illusory, or would effectively deprive an applicant of access to the proceedings as such, for example, when a case can be filed to a court only if assisted by a lawyer in circumstances when an applicant cannot clearly afford one.

Article 6 (1) of the ECHR and Article 47 of the EU Charter of Fundamental Rights guarantee the right to legal assistance in civil proceedings. This allows individuals to access justice irrespective of their financial means. Legal aid is generally subject to a financial means and merits test. States can decide whether it is in the interest of justice to provide legal aid, taking into account: the importance of the case to the individual; the complexity of the case; and the individual’s capacity to represent him-/herself.[14]

The right of access to a court (arising from the right to a fair hearing) should be effective for all individuals, regardless of their financial means. This requires states to take steps to ensure equal access to proceedings; for example, by setting up appropriate legal aid systems.[15] Legal aid can also facilitate the administration of justice because unrepresented litigants are frequently unaware of procedural rules and require considerable assistance from courts, which can cause delays.

The right to be advised, defended and represented helps individuals have a fair trial and enforce their rights. The right to a fair trial in non-criminal proceedings includes the right of access to a court. Individuals may require – and hence the state may be obliged to provide – legal representation or assistance to ensure that they can access courts and have fair trials.[16]

3.1. Right to legal representation in civil cases, proceedings viewed in the ECHR and it’s jurisprudence

Article 6 (1) may compel states to provide the assistance of a lawyer to secure effective access to court. In this way, legal assistance and legal aid are closely connected in the ECtHR’s case law. The question of whether Article 6 requires providing legal representation in non-criminal proceedings depends on the specific circumstances of each case.[17]

Although the obligation of the states to provide free legal assistance in civil matters is not provided for expressly in Article 6 of the Convention, the Court has found that the right to access to a court contained in Article 6 (1) encompasses the right to free legal assistance in civil matters of indigent applicants when such assistance proved indispensable for effective access to the courts and a fair hearing (in particular for ensuring the equality of arms).

Article 6 (1) leaves to the state a free choice of the means to be used in guaranteeing litigants the right of access to a court. The institution of a legal aid scheme constitutes one of those means but there are others, such as simplifying the applicable procedures. When legal aid is unavailable, the requirements of Article 6 (1) may be satisfied, if effective access to court is ensured in some other way.

In deciding whether the free legal assistance is indispensable for effective access to the courts or fair hearing in a particular case, the Court will consider the particular facts and circumstances of each case, taking into account several factors: (1) the importance of what is at stake for the applicant; (2) the complexity of the case or the procedure, particularly when legal representation is mandatory by law; (3) the capacity of the applicant to effectively exercise his or her right of access to court.

In Golder v. United Kingdom case[18], applying the Vienna Convention on the Law of Treaties and general principles of international law, the Court found that the Article 6 (1) guarantee of the right to a fair trial must be considered to include the right to “access to the courts” in general, in civil as well as in criminal matters. The applicant, a prisoner, had been denied the right to consult a lawyer for the purpose of bringing a civil libel action concerning an accusation that he assaulted a prison officer during a disturbance in the recreation area of the prison.

36. Article 6 (1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal.”

In Airey v. Ireland case[19], an Irish woman had been trying to obtain a decree of judicial separation from her husband but was unable to do so, as long as the Irish legal aid system did not provide legal assistance in such matters and the woman herself was not in a financial position to meet the costs involved. The Court found that Mrs. Airey had been denied an effective right of access to a court by the state’s refusal of legal aid, as the procedure was complex and entailed an emotional involvement, furthermore the applicant was from a humble background.

The Court also found a violation of Article 6 (1) in P, C and S v. United Kingdom case[20], where the applicants were denied free legal aid while contesting the severance of their parental rights in child abuse proceedings, because of the complexity of the case, the importance of what was at stake, and the highly emotional nature of the subject matter. The Court applied the tests in the Golder and Airey line of cases, recalling that free legal assistance may be necessary in civil matters in order to ensure that access to a court is both effective and fair.

In particular, the Court will consider whether an individual would be able to present his/her case properly and satisfactorily without the assistance of a lawyer. The nature of the case, as well as the applicant’s background, experience and level of emotional involvement, are significant issues for the Court to consider when determining questions of legal assistance.[21]

For example in Bertuzzi v. France case[22], the applicant was granted legal aid to bring an action for damages against a lawyer. However, all three lawyers assigned to his case sought to withdraw, owing to personal links with the lawyer the applicant wished to sue. The ECtHR held that the court that permitted the applicant to represent himself in the proceedings against the legal practitioner did not afford him access to a court under conditions that would secure his effective enjoyment of his rights, in breach of Article 6 (1) of the ECHR.

In R.D. v. Poland case[23], The Court ruled that both the financial and “interests of justice” criteria were met for providing free legal assistance. There were reasonable grounds to suspect the applicant was not wealthy enough to afford counsel. As well, legal representation was mandatory in cassation proceedings and the applicant would have needed effective representation to argue his case. The domestic court not only refused the request for free legal assistance, but did so with only eight working days left within the 30-day time limit for cassation. As a result, the domestic court deprived the applicant of having his case brought to the court for cassation in a “concrete and effective way.”

The ECtHR has held, as a general rule, that it is for domestic authorities to define the financial threshold for the means test. While the ECtHR allows Member States a certain margin of appreciation in choosing how to implement means tests, there must be sufficient guarantees against arbitrariness in the determination of eligibility (discussed further below). In Santambrogio v Italy[24], the ECtHR found no violation of the Article 6(1) right of access to a court where an applicant was refused legal aid on the grounds that his means exceeded the statutory limit. The ECtHR determined that the refusal to grant legal aid was based on the law and that the Italian legal system afforded sufficient guarantees against arbitrariness in the determination of eligibility for legal aid.

The Court found in A. B. v. Slovakia judgment[25], that when domestic law provides that a court may grant free legal assistance to a litigant in civil proceedings, the failure to deliver a formal decision to a request for such assistance constitutes a violation of the Article 6 (1) right of access to court. Especially, if the applicant is unable to present her case in conditions of equality vis-à-vis the defendant.

In Bobrowski v. Poland[26], the Court found that Article 6(1) was violated where the applicant had been partially exempt from paying court fees but was denied legal aid. The Court surmised that the partial exemption from court fees showed that the Polish courts considered the applicant’s financial decision to be such that he could not bear the costs of the proceedings. The Court stated that since the Polish courts did not give any reason for rejecting the applicant’s requests for legal aid, the principle of fairness, which is central to Article 6, was violated.

The Court reiterated in the Steel and Morris v. United Kingdom decision[27], that it is central to the concept of a fair trial, in civil as well as in criminal proceedings, that a litigant should not be denied the opportunity to present his or her case effectively before the court, and that he or she should enjoy equality of arms with the opposing side. The court noted that it may be acceptable to impose conditions on the grant of free legal assistance based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings. Further, the court noted that it is not incumbent on the state to use public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary.

The Court held that the modality in which Article 6, paragraph 1, of the Convention applies to courts of appeal or cassation depends on the special characteristics of these procedures and due account should be taken of the whole national legal system and the role of the Court of Cassation in this scheme. Given the special nature of the role of the Court of Cassation, which is limited to examining whether the law has been applied properly, the Strasbourg Court has accepted that the proceedings before the Court of Cassation may be more formal. The requirement that the applicant shall be represented by a qualified lawyer in the Court of Cassation may not in itself is contrary to Article 6 of the Convention. The requirement is compatible with the characteristics of a Supreme Court as the highest court which examines appeals/second appeals from the point of view of the law, which is a common legal feature in the Council of Europe Member States [28]

The CJEU also considered the right to choose a lawyer in the context of the directive relating to legal expenses insurance without commenting on fundamental rights, and it has not discussed the scope of Article 47 on this issue.[29] However, before the EU Charter of Fundamental Rights was adopted, the CJEU established that the right to legal representation and the privileged nature of correspondence between lawyers and clients are a fundamental part of the EU’s legal order and must be respected from the preliminary-inquiry stage.[30]

3.2. Representation in civil courts in jurisdictions based on the Roman Legal System

The Roman Law System, which sets the basis of many European legal systems, such as the French, German, Italian or Spanish one, considers mandatory legal representation in civil proceedings as an important factor of an orderly court procedure and fair process for the individuals involved.

a) In France there are a number of cases which require the representation of a lawyer in civil court proceedings. In actions brought in a Regional Court the parties must generally be represented by an advocate, except in cases concerning commercial leases, injunctions or actions for withdrawal of parental authority. However, in a District Court as a court of lower instance, representation by an advocate is not mandatory in the majority of the cases, as well as in the Commercial Courts, the Family and Social Courts and the Juvenile Court. Legal aid entitles the recipient to free assistance from an advocate or other legal practitioner (bailiff, avoué, notary, auctioneer, etc.) and to a waiver of court costs.

b) In Spain it is the general rule to use a Procurador (procurator) or an Abogado (lawyer) to conduct actions in the court. However an individual can act without these professionals when the dispute involves an amount of less than 900 Euros. It is also possible to submit an initial claim as a litigant in person through a fast-track procedure called “proceso monitorio” which can be used for claims of no more than 30.000 Euros if there is documentary evidence as proof. However, if the debtor does not pay, it is not possible to bring further action as a litigant in person. Those granted legal aid in Spain also receive free pre-trial legal advice and financial aid for lawyers’ fees.

c) In Italy, as a general rule, all litigants need to be represented by a lawyer. Only for claims concerning very small amounts of less than 1.100 Euros or if the plaintiff is a qualified Italian lawyer him/herself, the litigant can initiate procedural actions in person.

In conclusion, the idea of mandatory representation by a lawyer in court finds its basis in the Roman Legal System which in its modern form is inspired by the concept of a “social state”. However, for small and straightforward court actions even in jurisdictions following the Roman Legal System the requirement of representation by a lawyer is to some extent dispensed of.

3.3. Mandatory legal representation in civil (non-criminal) courts in the Romanian legal system

The situation was somehow similar in the Romanian legal system, after the recent civil procedure reform. The new Civil Procedure Code[31] introduced mandatory representation and assistance by a lawyer, respectively the mandatory drafting of the appeal application, as well as the exercise and conduct of the appeal only through a lawyer. This is not the case of the regular appeal (apel), but in case of `recourse` (recurs), which was conceived to be an exceptional legal remedy, which was accessible only for claims concerning significant amounts of more than 500.000 RON (almost 120.000 Euro).

The Constitutional Court declared this provision unconstitutional[32], with reference to the Article 6 of the ECHR and considered it as an obstacle to the access to justice.

The exception of unconstitutionality argued that these legal provisions of the new Civil Procedure Code, infringe upon the will of the party to defend itself, fundamental right guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. By assuming that fundamental rights must be guaranteed in a tangible and real manner and not in an illusory and theoretical manner, the practical impossibility of the person concerned to bring a case before a court constitutes a breach of his/her right of access to justice. This right imposes obligations for the legislature and the executive, and the State is required to give every person all reasonable facilities of fact and of law to have access to the court. It is also pointed out that free access to justice includes everyone’s right to apply directly and immediately to a court, in order to defend rights and legitimate interests. It is also stated that, although the right of access to courts is not absolute and does not involve the free nature of justice, however, the principle of proportionality is breached when setting exorbitant judicial stamp duties, which exceed the financial possibilities of the party concerned.

The Court found that the measure is not proportionate to the aim pursued by the legislature, the public benefit being insignificant in relation to the impairment of the individual’s fundamental rights and freedoms, such as those enshrined in Articles 21 and 24 of the Constitution. The legal provisions subject to criticism also affected the rights of defence of the defendant as a consequence of exercising the right of free access to justice by the appellant, however, the legal provisions subject to criticism violate Article 24 of the Constitution, a guarantee of the right to a fair trial.[33] Where the interested party is prevented from using the appeal, he can no longer use and defend his rights before the Court of Appeal.[34]

There is a special statute in the Romanian legal system[35], which provides free legal assistance to the parties of a civil case which have a disadvantaged social status. However in the motivation of the Court, the income threshold under which this legal assistance is provided, is considered too low, so the majority of the population doesn’t have access to this benefit.

The conclusion of the Constitutional Court is correct, but it doesn’t necessary mean that the mandatory representation by a qualified lawyer provision is unconstitutional. The major problem concerning the guarantee of the effective access to justice could have been resolved with the raising of the income threshold under which free legal assistance by a lawyer is provided. In this way, larger part of the society with reduced financial possibilities would have access to free representation and those who have higher income can hire attorneys, so the mandatory legal representation provision wouldn’t constitute an obstacle to effective access to justice anymore.

This income threshold is established way beyond the legal minimum wage in Romania. This legal minimum wage should represent the lowest minimum income accepted as normal in a society, that amount of money, of which a person can sustain her/himself. The fact that the income of the litigant party, in order to benefit of free legal representation, has to be under the minimum wage, creates a discrepancy and creates an unnecessary limit to the access of justice.

The remedy would be simple, raising this threshold at least at the level of the minimum legal wage. Of course this scenario would mean a higher burden on the central budget, as the remuneration of the lawyers who provide this legal assistance is funded by the Ministry of Justice.

All in all, the decision of the Romanian Constitutional Court of eliminating the requirement of mandatory legal representation by a lawyer at the recourse jurisdiction level is objectionable. The framing of a claim at the stage of `recourse` requires solid legal knowledge and experience, because it is limited to special conditions and reasons, so the majority of the population is unable for self-representation at this level. So, the qualified legal representation by a lawyer is beneficial from a legal administrative perspective and is an enormous help for the judges. However, if we take into account the fiscal considerations, the state has an interest in making the national legal framework compatible with the international human rights rules in a cost-efficient way, so the decision is understandable.

According to Government Emergency Ordinance 51/2008, the persons that can benefit from public legal aid are EU citizens living in Romania or in other EU Member States who have a civil case before the Romanian courts and have insufficient funds for legal assistance and/or representation.[36]

Free juridical assistance in the form of public judicial aid is granted according to the income of the inquirer, the costs of his/her trial or independent of the material status of the inquirer, as a measure of protection, considering some special situations like the belonging to a minority, a handicap, a certain statute and other alike. In this case, the public judicial aid is given only for the defence or granting of some rights and interests connected with the special situation of the inquirer.[37]

According to the Ordinance, legal aid is provided for any civil, commercial, administrative, labour, social security and other matters and proceedings, upon request, if the applicant: (a) is a natural person; (b) resides in Romania or in a member state of the European Union; (c) has a net income per household member of less than 500 RON (subject to certain exceptions); and (d) the costs related to legal proceedings or for obtaining legal advice in order to defend a legitimate right are sufficiently high to jeopardize the applicant’s financial means necessary to provide for his or her family. The maximum amount of legal aid that a person may receive during the course of one year is equal to 12 national minimum net monthly salaries.[38]

The aid is granted in view of both the judicial and the extrajudicial assistance; the Ordinance is to be applied to civil cases, but also to administrative, labour, commercial or cases of other nature, except criminal ones.

 The professional legal aid, similarly to exemption from court fees, may be granted upon motion of participant in the proceedings. The free judicial assistance may be required, totally or partially, whenever during the trial. Participants applying for an attorney providing professional legal aid and exemption from court fees are obliged to adequately document their financial situation, and thus provide not only a statement on their financial situation, but also evidence in support. These requirements are now more stringent and that means many poor people do not qualify.

In such a situation the expenses are temporarily borne by the State Treasury. The participant losing the case may be required to cover costs of proceedings and costs of legal representation (ex officio or not). Ex officio attorney may obtain his fees after the trial. If the participant represented by an ex officio representative loses the case, the attorney or legal advisor remuneration is paid directly from the State Treasury.

Although Romanian state-sponsored legal aid continues to address an increasing number of legal aid requests, access to legal aid remains limited.[39] For actual applicants, access is mostly hindered by the evidentiary criteria they have to meet in order to qualify for legal aid, as well as by the limited staff and financial resources available to process applications. In addition, given the absence of state-sponsored initiatives to promote access to free legal assistance, it is likely that a significant number of potential applicants are simply unaware of the existence of a legal aid system, and thus never apply.[40]

4. CONCLUSION

Is legal aid a human right? Yes, in certain circumstances. Under Article 6 (1) ECHR everyone has the general right ‘to a fair … hearing’ in the determination of civil rights and obligations. This implies an appropriate degree of ‘equality of arms’. The essential test for the need of legal aid in non-criminal cases is whether the proceedings are decisive for private rights and obligations. In civil cases, the threshold of need is high. The threshold for benefiting from free legal aid under the law should be lower than now, as well as the procedure should be simplified. A lawyer must be ‘indispensable for effective access to court’. But assistance must be more than formal as the intention is not to guarantee rights ‘that are theoretical or illusory but … practical and effective’.[41]

The situations, court and jurisdiction levels on which mandatory representation is required differs quite significantly between different legal systems; setting it is often based on political and fiscal considerations and are also subject to change. Whether or not representation is required reflects not only the origins of a legal system, but also the self-concept of the political system we are looking at: It can stress the responsibility of the individual for personal well-being and accept that financial or intellectual inequalities; also, impact on the individual’s abilities to navigate the legal system and to resolve legal problems.[42]

Decision for or against representation in court proceedings therefore is always a trade-off that needs to take into consideration the conceptual disadvantage of restricting one’s self determination on one hand, and the various positive effects of representation by lawyers that have been proven by empirical research on the other hand. Representation by lawyer also in civil courts has a positive impact on outcomes, guarantees a better quality of adjudication and lets the court operate more effectively by speeding up case disposal, reducing the need for assisting litigants and minimizing the intimidation of individuals involved in a court case.[43]


[1] Erhard Blankenburg, Legal Aid in The Netherlands With some comparisons to the German Legal Aid System, Amsterdam, 2003, available here, p. 1
[2] Iva Pushkarova, „Access to Justice: Legal Aid Systems in Uzelac et al Access to Justice and the judiciary. Towards New European Standards of Affordability, Quality and Efficiency of Civil Adjudication”, Metro, 2009, p. 49;
[3] Deborah Rhode, „Acces to Justice”, Oxford University Press, 2004, p. 9;
[4] Dr. Matthias Kilian, „Representation by Lawyers in Court Proceedings”, CCBE/PECO Kiev June 5, Cologne 2015, p. 2;
[5] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5, available here;
[6] Making Legal Aid a Reality A Resource Book for Policy Makers and Civil Society, European Court of Human Rights Jurisprudence on the Right to Legal Aid, Public Interest Law Institute, Budapest, 2009, p. 208.
[7] Vassela Terzieva, “Access to Justice in Central and Easter Europe: Comparative Report”,Public Interest Initiative, November 2002 – available at www.pili.org;
[8] ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 26.
[9] CJEU, C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Bundesrepublik Deutschland, 22 December 2010, para. 48.
[10] FRA (2011), Access to justice in Europe: an overview of challenges and opportunities, p. 47
[11] Claire Perinaud, Is the EU coming to save legal aid, or to bury it? An assessment of negotiations on the proposed Directive, Barnard & Peers: chapter 26, 17 March 2015., available at http://eulawanalysis.blogspot.ro/2015/03/is-eu-coming-to-save-legal-aid-or-to.html;
[12] EU (2012), Charter of Fundamental Rights of the European Union, Art. 52 (3), OJ 2012 C 326.
[13] Explanations relating to the Charter of Fundamental Rights, OJ 2007 C303/17., available here.
[14] FRA Handbook on European law relating to access to justice, European Union Agency for Fundamental Rights and Council of Europe, January 2016, p. 58.
[15] Council of Europe, Committee of Ministers (1978), Resolution 78(8) on legal aid and advice, 2 March 1978.
[16] ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 26.
[17] ECtHR, Steel and Morris v. the United Kingdom, Application No. 68416/01, 15 February 2005, para. 61
[18] ECtHR, Golder v. United Kingdom, Application No. 4451/70, 21 February 1975
[19] ECtHR, Airey v. Ireland, op. cit.;
[20] ECtHR, P, C and S v. United Kingdom, Application no. 56547/00, 16 July 2002.
[21] ECtHR, McVicar v. the United Kingdom, Application no. 46311/99, 7 May 2002, para. 48.
[22] ECtHR, Bertuzzi v. France, Application no. 36378/97, 13 February 2003, para. 31.
[23] ECtHR, R.D. v. Poland, Application no. 29692/96, 18 December 2001, para. Para. 36;
[24] ECtHR, Santambrogio v Italy, Application no. 61945/00, Judgment of 21 September 2004, at para. 55.
[25] ECtHR, A. B. v. Slovakia, Application no. 33392/12, 4 March 2004;
[26] ECtHR, Bobrowski v. Poland, Application no. 64916/01, 17 June 2008;
[27] ECtHR, Steel and Morris v. United Kingdom, Application no. 68416/01, 15 February 2005;
[28] ECtHR, Staroszczyk v. Poland, Application no. 59519/00, 8932/05, 15 June 2006, Para. 126, 128;
[29] CJEU, C-442/12, Jan Sneller v. DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV, 7 November 2013, concerning Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions, OJ 1987 L 185, Art. 4 (1).
[30] CJEU, Joined cases C-46/87 and C-227/88, Hoechst AG v. Commission of the European Communities, 21 September 1989, para. 15.
[31] Article 83. of the Code of Civil Procedure, enacted by Law no. 134/2010 published in the Romanian Official Journal no. 545/2012;
[32] Decision nr. 462/2014 of the Romanian Constitutional Court, concerning the exception of unconstitutionality against the second sentence of Article 13 (2), Article 83 (3) and Article 486 (3) of the Code of Civil Procedure published in the Official Gazette no. 775 of 24 October 2014
[33] see, in this regard, Decision no. 80 of 16 February 2014 of the Romanian Constitutional Court, published in the Official Gazette of Romania, Part I, no. 246 of 7 April 2014;
[34] see, in this respect, Decision no. 482 of 9 November 2004 of the Romanian Constitutional Court;
[35] Government Emergency Ordonance 51/2008 (OUG nr. 51/2008) on Judicial Public Help with Respect to Civil Matters, published in MONITORUL OFICIAL no. 327/25.04.2008, as subsequently amended.;
[36] Ștefan Naubauer, Legal Aid as Seen in The Light Of The Law No. 270/2010 Regarding the Amendment And the Completion of the Law no. 51/1995 for The Organization and the Practice of the Lawyer’s Profession, 2011, Bucharest, p. 380;
[37] Art.81 of the Government Emergency Ordonance 51/2008.
[38] Articles 2, 3, 4, 7 and 8. of the Government Emergency Ordonance 51/2008.
[39] As confirmed verbally with a representative of the Bucharest Legal Aid Office on September 1, 2015, the service is currently addressing 800 pending legal aid requests, which have been approved and fall within the existing budget.
[40] Mihaela Tăbârcă, Issues regarding the public legal aid in civil matters, in the Romanian Magazine of EC law no. 2/2009;
[41] ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 24.
[42] Jill Parker, Comment: West Meets East: A Discussion of European Union Enlargement and Human Rights, 11 TULSA J. COMP. & INT’L L,2004., p. 603, 625;
[43] Dr. Matthias Kilian, Representation in Court Proceedings – Comparative Aspects and Empirical Findings, Astana, 2016, p. 23, available here.


Szendrei Tamás

Related posts