Efficiency and effectiveness of legal aid schemes in the areas of civil and administrative law

Access to justice is a vital element in the democratic process and one of the basic principles of the rule of law. It is essential to liberty, fairness and dignity and should be guaranteed to all individuals irrespective of their financial situation. It guarantees an individual’s ability to protect her/his rights in conformity with human rights standards. Access to legal aid (the provision of legal advice, assistance and/or representation at either no cost or subject to a financial contribution) is crucial to ensure access to justice. Legal aid schemes should cover costs related to legal advice, assistance and representation.

The Committee of Ministers of the Council of Europe adopted on 31 March 2021 the guidelines on efficiency and effectiveness of legal aid schemes in the areas of civil and administrative law, prepared by the European Committee on Legal Co-operation (CDCJ).

These guidelines provide concrete guidance for states’ reform processes regarding legal aid systems in order to provide better access to justice, particularly to the most vulnerable. They include generic solutions to increase the efficiency and effectiveness of their national legal aid schemes in the areas of civil and administrative law.

Through the work of the CDCJ and the adoption of these guidelines, the Council of Europe is supporting member States’ efforts towards the implementation of the 2030 Agenda for Sustainable development vision of a “just, equitable, tolerant, open and socially inclusive world in which the needs of the most vulnerable are met”, and notably SDG 16.3’s promises to ensure equal access to justice for all.

Who can use the guidelines?

A comparison of legal aid schemes of the member States reveals that there are differences in approach, organisation and management of the legal aid systems.

These guidelines should assist the justice policy and decision- makers to identify solutions to the issues of accessibility, quality of the legal aid services and services providers, in order to protect the rights of the most disadvantaged and vulnerable members of society and ensure access to justice to all their citizens.

As a practical tool, the guidelines and its explanatory memorandum offer examples of good practices and propose practical solutions to important aspects of the legal aid system, such as the overall organisation of the legal aid system and providers of the services, provision of the preliminary legal aid, developing mechanisms for ensuring the quality of the legal aid provided, carefully considering defining the criteria for financial eligibility for granting of the legal aid to the vulnerable person.

It is hoped that they will usefully inspire policy makers from other states which are not members of the Council of Europe in their reform processes of legal aid schemes.

Context

The guidelines define “Legal aid” as the provision of legal advice, assistance and/or representation by a legal aid provider at either no cost or subject to a financial contribution. Legal aid is only one way to guarantee access to justice.

The right to legal aid is enshrined in the European Convention on Human Rights (ECHR) - Article 6 (3)(c) of the Convention guarantees the right to legal assistance where the defendant has insufficient means to pay for legal assistance, and to get free legal “where the interests of justice so require”. This article also enshrines the right to “practical and effective” legal assistance. It allows those who do not have sufficient financial resources to defend themselves or cover the costs of bringing the case to the court.

Article 6 of the ECHR does not explicitly guarantee a right to legal aid in civil proceedings or outside of judicial proceedings. In its case-law, the ECtHR it established that state authorities should provide everyone within their jurisdiction with the assistance of a lawyer in civil cases when this proves indispensable for effective access to court, or when lack of such assistance would deprive a person of a fair hearing. The ECtHR also held that the requirement to pay fees to a civil court should not hinder access to a court for applicants who are unable to pay them.

The Committee of Ministers (“CM”) Resolution (78) 8 On Legal Aid and Advice recommends the member States to ensure that persons in an economically weak position are able to obtain necessary legal advice on civil, commercial, administrative, social or fiscal matters. The CM Recommendation No. R (93) 1 On Effective Access to the Law and to Justice for the Very Poor invites the member States to promote legal advice services to the very poor by defraying the cost of legal advice through legal aid schemes, by supporting advice centres in underprivileged areas, and by enabling non-governmental organisations or voluntary organisations providing support to the very poor, to give legal assistance.