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Doc. 9071

3 May 2001

Draft additional Protocol to the European Agreement on the transmission of applications for legal aid1

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Michel Hunault, France, European Democratic Group

Summary

The report approves the draft protocol subject to a few minor modifications. Since the draft protocol only deals with civil, commercial and administrative matters, the Assembly recommends that the Committee of Ministers study how European cooperation in the field of legal aid in criminal matters may be improved.

I.       Draft opinion

1.        It is evident that persons in a financially weak position may only be able to exercise their legal rights, at home and abroad, if an effective way of granting them legal aid is provided.

2.        Legal aid or legal assistance consists of a state or other subsidy to persons whose income is insufficient to enable them to pay the costs of defending their interests before the courts. It is considered essential for ensuring equal access to justice for all.

3.        The Assembly notes that under the European Convention on Human Rights legal aid in criminal matters is considered a fundamental right. According to Article 6 § 3 (c):

4.        It is therefore somewhat surprising that the Council of Europe has not taken any action to further implement Article 6 § 3 (c) of the European Convention on Human Rights on legal aid in criminal matters, leaving this only to the case-law of the European Court of Human Rights.

5.        Many Council of Europe member states have set up a satisfactory legal aid system. Practically all of these states have become a Party to the Council of Europe's European Agreement on the transmission of applications for legal aid.

6.        This European Agreement concerns the transmission of applications for legal aid in civil, commercial and administrative matters. It has been ratified by 23 member states and signed by an additional five member states and entered into force on 28 February 1977.

7.        The Committee of Ministers is now proposing an additional protocol to this Agreement. It aims to

i.        facilitate, accelerate and improve the procedures for the transmission of requests for legal aid in civil, commercial and administrative matters;

ii.       improve communication between applicants and lawyers.

8.        The Assembly

i.        approves this draft protocol, subject to the following amendments to its Article 4:

a.       after sub-paragraph a), add the following new sub-paragraph:

      "inform transmitting authorities of the decisions taken on the application."

b.       inverse the order of sub-paragraphs b. and c.

ii.       recommends, subject to the above amendments, that the Committee of Ministers open the draft protocol for signature and ratification;

iii.       recommends that the Committee of Ministers invite those member states which have not yet done so, to set up an adequate legal aid system and to ratify the European Agreement on the transmission of applications for legal aid;

iv.       recommends that the Committee of Ministers instruct its Steering Committee on Crime Problems (CDPC), in cooperation with the Committee of experts on the efficiency of justice (CJ-EJ), to study international cooperation concerning the transmission of applications for legal aid, both for victims and for persons suspected or accused of criminal acts.

II.       Explanatory memorandum

      by Mr Hunault, Rapporteur

1.        Many Council of Europe member states grant a state or other subsidy called "legal aid" or "legal assistance" to persons whose income is insufficient to enable them to meet the costs of defending their interests before the courts. In practice, it means that an official authority will appoint a practising lawyer whose expenses and fees will be paid by the state. Such a state subsidy is considered essential to ensure equal access to justice for all and replaces the system in the past where lawyers took it upon themselves to assist poor clients free of charge (pro Deo).

2.        Under the European Convention on Human Rights (hereafter "ECHR") legal aid in criminal matters is considered as a fundamental right and, in accordance with Article 6 § 3 (c) of the Convention, everyone charged with a criminal offence has the right "to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". One may wonder why this provision is considered a basic right in penal procedure only. Such fundamental rights as the right to privacy, the right to freedom of religion, the right to property, the right to family reunion, and others - all listed in the European Convention on Human Rights - may be equally important and might justify the granting of legal aid. This is, however, not the subject of the present report, but the Committee on Legal Affairs and Human Rights might return to it in the report on the inclusion of new rights into the Convention which is at present under preparation by its Rapporteur, Mrs Nabholz-Haidegger.

3.        Legal aid may extend well beyond the cost of proceedings in court. It may also include the providing of information, legal advice and assistance under conditions and at times and places that suit applicants, with particular attention being paid to clients' ability to understand what their lawyers are telling them.

4.        Under Article 6 § 3 (c) of the ECHR, two conditions must be met for legal assistance to be given freely to enable those charged with criminal offences to defend themselves: those concerned must lack sufficient means to defend themselves and legal assistance must be required in the "interests of justice". In this respect different criteria would have to be applied, such as the seriousness of the offence and the severity of the potential sentence, the complexity of the case and the personal situation of the accused.2

5.        Although it would be very interesting to elaborate on these different criteria and the case-law of the Court, it does not seem appropriate to do so here especially since the Court's jurisprudence concerns criminal cases whereas the draft Protocol under consideration only concerns legal aid in civil, commercial and administrative matters. In order to help persons obtain legal aid in civil, commercial and administrative cases abroad, Article 1 of the European Agreement on the transmission of applications for legal aid, provides that "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 and administrative matters in the territory of another Contracting Party may submit his application to the state in which he is habitually resident. That state shall submit his application to the other state".

6.        The Agreement is only concerned with the transmission of applications. It does not, therefore, contain any rules relating to the material conditions which the applicant must fulfil in order to receive legal aid. Its aim is to make it easier for a person on a low income to obtain legal aid in a Contracting Party other than the one in which he or she normally resides. Such persons must make an application to the transmitting authority of their country of residence, and that authority will be able to supply him with all the necessary information for submitting an application and help to settle any difficulties. It is clear that only those member states of the Council of Europe which themselves possess an adequate system of legal aid may become a Contracting Party to the Agreement. It would, however, be going too far to say that, therefore, those member states which have not ratified are probably lacking such a system. In fact, certain countries cannot easily ratify the Convention because of a complex constitutional situation where, for example, questions concerning legal aid are not the responsibility of the central government but of the local or regional authorities. As Article 7 of the Agreement provides that the central authorities of the Contracting Parties must provide each other with information on the state of their law governing legal aid it was decided to set up a convention-related committee, the multilateral committee on the European Agreement on the transmission of applications for legal aid to coordinate the action of central authorities.

7.        Since its adoption and opening for signature in 1977, the Agreement has been completed by a certain number of resolutions and recommendations of the Committee of Ministers with the aim of making it more efficient. It was now considered useful to complete the Agreement by an additional protocol in order to lay down some guidelines for the communication between clients and their lawyers and to improve the efficiency of the Agreement.

8.        Maybe these matters could have been dealt with in a new, comprehensive recommendation of the Committee of Ministers to member governments, but the Committee of Ministers has now opted for an additional protocol which – once signed and ratified by Contracting States – may be more effective than a new recommendation. Given the nature of the draft protocol (cooperation between states) and its wording which is not always binding (for instance such a sentence as in Article 3 § 2: "where it is not practical") the Committee might again have chosen the form of a recommendation. However, having said this, the Assembly may wish to respect the choice of the Committee of Ministers and approve the draft protocol, to which a few minor changes are proposed in the draft opinion which is laid before the Assembly.

9.        As mentioned above, legal aid is considered a fundamental right in criminal matters, but it is surprising that the Council of Europe and its Steering Committee on Crime Problems (CDPC) have not taken any steps to implement this provision in practical measures of cooperation at European level, such as have been taken for legal aid in civil, commercial and administrative matters. Of course, one must consider that the situation in criminal matters is different, but nevertheless your Rapporteur believes that there may be a lacuna here and he suggests that the Committee of Ministers instructs the CDPC, in cooperation with the Committee of experts on the efficiency of justice (CJ-EP), to study the matter. It is clear that such legal aid in criminal matters should be extended to victims as well as to those suspected or accused of criminal acts.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8983, Reference No. 2591 of 14 March 2001

Draft opinion unanimously adopted by the committee on 26 April 2001

Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andreoli, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bartumeu Cassany, Mr Bindig, Mr Bordas, Mr Brejc, Mr Bruce, Mr Bulavinov, Mr Cilevics, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Floros, Mrs Frimannsdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacăo, Mr Lento, Mr Lintner, Mr Lippelt, Mr Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr McNamara, Mr Michel (alternate: Mr About), Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu, Mr Pavlov, Mr Pollo, Mrs Postoico, Mrs Pourtaud (alternate: Mr Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy, Mr Rustamyan, Mrs Serafini (alternate: Mr Lauricella), Mr Shaklein, Mr Simonsen, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzales), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Süssmuth, Mr Svoboda, Mr Symonenko (alternate: Mr Khunov), Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Wilkinson, Mrs Wohlwend, Mr Wojcik (alternate: Mr Walendziak), Mrs Wurm (alternate: Mrs Stoisits)

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge and Mr Cupina

1 See Doc 8983.

2 See European Court of Human Rights, Quaranta judgment of 24 May 1991, Series A No 205, p 17.