Europe to the Rescue? EU Law, the ECHR and Legal Aid

NOTA BENE : Chapter from Palmer, Cornford, Marique and Guinchard, Access to Justice: Beyond the Policies and Politics of Austerity (Hart, 2016)

by  Steve Peers

Introduction

Some potentially radical changes in public policy are prevented, or at least constrained somewhat, by the twin protections provided by European Union (EU) law and the European Convention on Human Rights (ECHR). Is this true of cut backs of legal aid in civil and administrative cases?

Legal aid in EU countries takes two forms: support for the costs of a lawyer, and exemption from court fees.1 Some states provide for only one of these types of support, and some provide both. There are also alternative means of assisting litigants, namely: legal expenses insurance, legal advice centres, pro bono work and self-help services.2 Across the EU, there is a wide discrepancy in the amount of legal aid expenditure per person, with most Member States spending less than €5 per person and expenditure being cut in many countries.3

The ECHR

Although Article 6(3)(c) ECHR guarantees legal aid as regards criminal matters, there is no express provision on legal aid in civil or administrative proceedings. However, starting with the 1979 judgment in Airey v Ireland,4 the European Court of Human Rights (ECtHR) stated that the general right to a fair trial in Article 6(1) ECHR could include an implied right to legal aid in civil cases too, if this is necessary to ensure effective access to justice. The facts of the case concerned judicial separation proceedings, and the Court considered that the alternative of presenting her case in person would not fully guarantee the applicant’s right to a fair trial, due to the complex procedural and substantive law, the need for expert advice as regards evidence and other witnesses, and the emotional impact of the case.

The Court rejected the argument that a right to legal aid in civil proceedings brought the ECHR unduly into the field of social rights, and that Article 6(3)(c) ECHR implied a contrario that there was no right to legal aid in civil matters.

The key point was that ‘despite the absence of a similar clause for civil litigation’, Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.

Subsequent case law made clear that there is no general right to legal aid in all civil proceedings. Rather, any limitation on the right of access to the courts (the implied right which legal aid facilitates) cannot undermine the very core of the right.

Limitations of the right must pursue a legitimate aim, and must also be proportionate in light of the legitimate aim which they seek to satisfy. For instance, in Tolstoy-Miloslavsky the applicant, a defendant in a libel case, challenged an order for security for costs of over £100,000 that he would have to pay within 14 days in order to bring an appeal.5

The ECtHR ruled that there was a ‘legitimate aim’ for the costs order (protecting the other party from shouldering his own costs if the applicant could not pay them in the event of an unsuccessful appeal). The merits test imposed upon the proceedings could also be ‘said to have been imposed in the interests of a fair administration of justice’. The security for costs requirement did not impair ‘the very essence’ of the right of access to court, because there had already been an extensive first-instance hearing; the sum was a reasonable estimate of the costs involved; the applicant could not have raised the money in a longer period of time; the national court took the merits into account when considering a possible waiver of an order for security of costs; the applicant was more interested in determining liability than costs (he had refused a proposed settlement); and there was a full judicial assessment of the costs issue. Therefore there was no ‘arbitrariness’ in issuing the order for security of costs.

In the case of Kreuz v Poland,6 the ECtHR reiterated that a requirement to provide security for costs was in principle a legitimate restriction on access to court. But in that case, the required security amounted to a year’s average salary. Although the applicant was a businessman, the dispute was ‘related only loosely, if at all, to a business activity as such’. Rather it was a claim for damages against a public authority. Also, the national courts only considered his hypothetical earning capacity, not the amount which he actually earned, did not supply any evidence to contradict his account of his earnings, and made assumptions which were not supported by any evidence. Moreover, national law allows for the exemption from court fees to be revoked if the applicant’s financial situation improves. On the whole, then, there was an insufficient balance between the state interest in collecting court fees and the applicant’s right to vindicate his claim in the courts, since the required fee was excessive and deterred him from going to court at all.

Another key judgment is Steel and Morris v United Kingdom.7 In a case involving libel defendants, the ECtHR began by reiterating the basic case law on when legal aid was necessary in civil cases pursuant to Article 6 ECHR. This must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively. Restrictions are possible if they ‘pursue a legitimate aim and are proportionate’. So conditions can be imposed on ‘the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings’.

The state is not obliged to grant legal aid ‘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’.

Applying these criteria, first of all, this case was different from previous judgments like Airey because ‘the proceedings … were not determinative of important family rights and relationships’, and usually there is a distinction between a defamation action aiming to protect an individual’s reputation from an application for judicial separation, ‘which regulates the legal relationship between two individuals and may have serious consequences for any children of the family’. But here the applicants did not bring the proceedings, but ‘acted as defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention’, and the damages awarded against them were huge in comparison with their modest incomes.

The case was also distinct from prior judgments ruling that the English law of defamation and civil procedure is not complex enough to require legal aid,8 since those rulings concerned a single allegation while Steel and Morris concerned the longest trial in English history, with thousands of pages of evidence, over 100 witnesses, judgments running to over 1000 pages and numerous legal and procedural issues.

Compared with prior cases, in which the defamation actions were brought by professionals, the applicants would have met the means test for legal aid and benefited from some pro bono legal assistance and latitude extended by the courts. But the ECtHR ruled that this was not a ‘substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel’, and the ‘disparity’ between their legal assistance and the plaintiff’s (McDonald’s Restaurants) ‘was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness’. Therefore there was a breach of Article 6.

As for the form of legal aid granted, states have discretion to provide different forms of legal aid for different types of litigation. For instance, it was acceptable for the UK to exclude defamation cases from legal aid support, since it had granted potential litigants of defamation cases the right to two hours of free pre-litigation legal advice, if they had insufficient means.9

As regards one type of plaintiff (profit-making companies), the ECtHR ruled that their exclusion from a national legal aid scheme was acceptable since the discrimination between them and non-profit-making organisations and natural persons had an objective and reasonable justification (the possibility to deduct the legal costs from the company’s tax bill).10

EU Law

EU law provides for three separate (but partly overlapping) forms of human rights protection, in Article 6 of the Treaty on European Union (TEU).

First, human rights are protected in the form set out in the EU Charter of Fundamental Rights, which has the ‘same legal value’ as the EU Treaties (Article 6(1) TEU). Second, the EU is obliged to sign up to the ECHR in its own name (Article 6(2) TEU). However, that process has been stymied by a very negative opinion from the Court of Justice of the European Union (CJEU) on the draft Treaty which aimed to ensure accession.11 It may be difficult or impossible to agree an alternative version of this Treaty which secures accession in a way which is compatible with EU law in the CJEU’s opinion. In the meantime, the ECHR does not bind the EU as such.12

Finally, Article 6(3) TEU provides that human rights are also still protected as ‘general principles’ of EU law.

Unlike the ECHR, the EU Charter refers to legal aid outside the criminal law context.

This forms part of Article 47 of the Charter, which first of all guarantees ‘an effective remedy before a tribunal’ to ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union’ have been ‘violated’, ‘in accordance with the conditions laid down’ in the rest of Article 47.

The second paragraph of Article 47 goes on to state that: ‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented’.

Finally, the third paragraph states that: ‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’.

The ‘general provisions’ in Title VII of the Charter are also relevant.

Article 51 of the Charter sets out its scope of application:

1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.

Article 52 sets out a number of rules on the limitation and interpretation of Charter rights. There is a general limitations rule in Article 52(1):

1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

Also, Article 52(3) describes the relationship between the Charter and the ECHR:

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Unlike the original ECHR, there are official explanations to the Charter. Article 6(1) TEU stresses the importance of both the general provisions and these explanations:

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

What do the explanations say about the relevant provisions of the Charter? First, the first paragraph of Article 47 is ‘based on’ Article 13 ECHR (on the right to an effective remedy), except that ‘in Union law the protection is more extensive since it guarantees the right to an effective remedy before a court’. Next, the second paragraph ‘corresponds to’ Article 6(1) ECHR. However, the explanations state that:

In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law … Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.

As for the third paragraph of Article 47, the explanations note that according to the case law of the ECtHR, ‘provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy’ (referring to Airey v Ireland). The explanations also note that there is ‘a system of legal assistance for cases before the Court of Justice of the European Union’.

The explanations to Article 52(3), on the links between the Charter and the ECHR, are also relevant. They state that ‘[t]he reference to the ECHR covers both the Convention and the Protocols to it’, and that the ‘meaning and scope’ of the rights are ‘determined not only by the text of those instruments, but also by the case-law of the European Court of Human Rights and by the Court of Justice of the European Union’. But the explanations are less clear about the meaning of the second sentence of Article 52(3), simply restating that it ‘is designed to allow the Union to guarantee more extensive protection’. The only elaboration on this is that ‘[i]n any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR’.

Also, the explanations indicate which provisions of the Charter should be regarded as ‘corresponding’ to the ECHR. This list states that ‘Article 47(2) and (3) corresponds to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation’. Furthermore, the explanations state that Article 52(3) is ‘intended to ensure the necessary consistency between the Charter and the ECHR’ and that the ‘meaning and scope’ includes ‘authorised limitations’:

This means in particular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR, which are thus made applicable for the rights covered by this paragraph, without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union.

Case Law

The leading case on Article 47(3) of the Charter is DEB, which concerned a claim for legal aid by a legal person. In this case, the legal person requesting legal aid was a company without any income or assets, which was arguing that Germany was liable in damages for a breach of EU law due to defective implementation of EU legislation establishing an internal market for energy. The company did not have enough money to meet a demand of security for costs, so could not qualify to receive legal aid.13

The CJEU referred to Article 52(3) of the Charter, in particular the correspondence between Charter rights and the ECHR, and the explanations referring to the case law of the ECtHR and the Airey judgment. The explanations do not specify whether legal aid ‘must be granted to a legal person or of the nature of the costs covered by that aid’. So the CJEU interpreted the rule ‘in its context, in the light of other provisions of EU law, the law of the Member States and the case‑law of the European Court of Human Rights’.

Applying these rules, the word ‘person’ in the various language versions of Article 47 did not exclude legal persons, and the other rules in Title VI of the Charter could apply to both natural and legal persons. Since legal aid was not referred to in the ‘social rights’ provisions of Title IV of the Charter, this suggested that it was not a form of social assistance. National law did not set out a common principle which Member States shared as regards the grant of legal aid to legal persons, although many Member States made a ‘distinction between profit-making and non-profit-making legal persons’.

Next, the CJEU took account of ECtHR case law, referring to the right of effective access to court, which is not absolute. It incorporated into EU law the ECtHR criteria relating to legal aid: the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself effectively … Account may be taken, however, of the financial situation of the litigant or his prospects of success in the proceedings … the European Court of Human Rights has similarly examined all the circumstances in order to determine whether the limitations applied to the right of access to the courts had undermined the very core of that right, whether those limitations pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved.

Furthermore, the CJEU took account of ECtHR case law ruling that a selection procedure for legal aid ‘must operate in a non‑arbitrary manner’, including the VP Diffusion decision on the permissible distinction between profit-making companies and others, and the CMVMC O’Limo v Spain decision.

From this, the CJEU concluded that ‘the grant of legal aid to legal persons is not in principle impossible, but must be assessed in the light of the applicable rules and the situation of the company concerned’.

It was possible to consider the ‘subject‑matter of the litigation … in particular its economic importance’, as well as the form of the legal person, ‘the financial capacity of its shareholders; the objects of the company; the manner in which it has been set up; and, more specifically, the relationship between the resources allocated to it and the intended activity’. It then left all of these factors to be weighed up by the national court.

Subsequently, the CJEU reiterated this judgment in its order in the case of GREP,14 which concerned the order to enforce a judgment of a German court in Austria, pursuant to the EU legislation on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters.15 GREP was the subject of the enforcement order, but could not get legal aid because Austrian law denies it to legal persons in enforcement proceedings. The CJEU ruled that the case fell within the scope of EU law because it concerned the application of rules in an EU Regulation (this aspect had merely been assumed by the Court in DEB). It then simply repeated what it had ruled in that prior judgment.

EU Legislation

A number of EU legislative measures contain express provisions on legal aid, and so any disputes concerning these provisions would obviously fall within the scope of EU law, and therefore the Charter.16

In the area of immigration and asylum law, the EU’s asylum procedures legislation sets out a right to free legal assistance following a negative decision on the asylum application.17

But Member States may provide that legal aid is granted: only for procedures before a court or tribunal, not for any other ‘onward appeals or reviews’; subject to a means test; for designated legal advisers only; or ‘only if the appeal or review is likely to succeed’, subject (in the latter case) to an obligation to ‘ensure that legal assistance and/or representation … is not arbitrarily restricted’.18

They can also impose financial or time limits on legal aid, subject again to a ban on arbitrarily restricting access to legal assistance, or provide that legal aid cannot be more favourable than that of nationals in similar cases.19 Finally, they can demand to be reimbursed if ‘the applicant’s financial situation has improved considerably’ or if the applicant gave false information that was the basis of the decision to grant legal aid.20

The second version of the procedures Directive specifies that legal aid covers the preparation of documents and the participation in the hearing.21 Member States have an option, but not an obligation, to extend a legal aid right to cover the original administrative procedure which considers the asylum application.22 There is a slightly different version of the optional merits test (where the appeal is ‘considered by a court or tribunal or other competent authority to have no tangible prospect of success’), which appears to tilt the balance of the test towards the asylum seeker. The Directive also provides that there must be a review before a court or tribunal of any decision to refuse legal aid on this ground (unless it was a court or tribunal that refused legal aid in the first place); and there is an extra requirement that the applicant’s ‘effective access to justice is not hindered’.23 The other previous conditions continue to apply, with the additional possibility that Member States can refuse legal aid in the case of repeat applications.24 It might be arguable that the general principles of EU law require legal aid to be available during the administrative procedure, despite the absence of such a right under the Directive, although an equivalent claim relating to irregular migration was unsuccessful (see discussion below).

For asylum seekers challenging their detention, the revised Directive on reception conditions for asylum seekers provides that where detention of an asylum seeker has been ordered by the administration, the asylum seeker has the right to ‘free legal assistance and representation’ in the context of a judicial review of the detention order.

This must ‘at least’ include ‘the preparation of the required procedural documents and participation in the hearing before the judicial authorities on behalf of the applicant’.25

As with the procedures Directive, Member States may: impose a means test and/or require asylum seekers to use specially designated legal advisers;26 provide for fee caps and time limits, as long as this does ‘not arbitrarily restrict access to legal assistance and representation’; specify that asylum seekers do not have better treatment ‘than the treatment generally accorded to their nationals in matters pertaining to legal assistance’;27 and demand to be reimbursed, under the same conditions.28

The same Directive also contains rules on legal aid for challenging decisions to withdraw benefits, or which limit asylum seekers’ residence or free movement. In those cases, Member States must provide for free legal aid on request ‘in so far as such aid is necessary to ensure effective access to justice’.

Again, this extends to the preparation of documents and participation in the hearing29 and Member States can impose a means test or require the use of specified lawyers.30

In this case, Member States can also provide for legal aid to be refused if a ‘competent authority’ thinks the review has ‘no tangible prospect of success’, provided that ‘legal assistance and representation is not arbitrarily restricted and that the applicant’s effective access to justice is not hindered’.31 The same possibilities of imposing fee or time limits, national treatment regarding legal aid, or demanding reimbursement apply.32 Compared with the first version of the reception conditions Directive,33 the provisions on legal aid in detention cases are new,34 and there had been no detailed provision for legal aid to challenge the decisions to cut benefits or limit free movement in the prior Directive.35

There are also rules on legal aid in the ‘Dublin III’ Regulation, which regulates the determination of which a Member State is responsible for an asylum seeker.36

If asylum seekers challenge this determination, they have the right to legal aid if they cannot afford the costs. Member States may apply a comparison with nationals and refuse legal aid if there is ‘no tangible prospect of success‘ (subject to a legal review of this decision before a court or tribunal), subject to the rule that ‘legal assistance and representation is not arbitrarily restricted and that the applicant’s effective access to justice is not hindered’. The right extends to ‘at least the preparation of the required procedural documents and representation before a court or tribunal’, and Member States can restrict it to specialist legal advisers. As for detention during the Dublin procedure, the Dublin III Regulation requires that the rules in the reception condition Directive (including the legal aid rules) apply.37

For irregular migrants who are not asylum seekers,38 the EU’s returns Directive provides for legal aid on the same conditions as the asylum procedures Directive, in order to challenge a return decision or an entry ban.39 The CJEU has held that EU law does not extend to a right to legal aid at an earlier point, during the administrative process that led up to the return decision being adopted.40 It has not yet ruled on whether EU law might require a right to legal aid in order to challenge detention.41

As for civil law, the main rules are set out in Directive 2003/8/EC,42 which specifically concerns the right to legal aid in cross-border civil proceedings. This Directive applies to all civil and commercial matters,43 excluding only customs, revenue, and administrative matters.44 It applies only to cross-border matters, which are defined as cases where the party applying for legal aid is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced,45 at the time when the application was submitted.46

Directive 2003/8/EC provides for a right to legal aid for pre-judicial assistance with a view to a settlement and legal assistance and representation in court, including the costs of proceedings. However, Member States can apply a means test, and they do not have to provide legal aid for specialist tribunals where the parties can make their case effectively in person.47 The legal aid must be granted without discrimination as regards EU citizens and legally resident third-country nationals.48 Member States can reject claims which appear to be manifestly unfounded.49 Also, if pre-litigation advice is offered, further legal aid ‘may be refused or cancelled’ on the merits of the case, as long as ‘access to justice is guaranteed’.50 Member States must consider the importance of the case to the individual, but can also consider the nature of the case if it concerns reputational damage but there is no material or financial loss, or if the claim arises directly from the applicant’s trade or profession.51

The Directive allocates costs between Member States. The Member State where the court is sitting must cover the direct costs related to the cross-border nature of the dispute as regards interpretation, translation of certain documents, and travel costs of the applicant if the physical presence of the people presenting the case is a legal obligation and the court decides that those people cannot be heard by other means.52 But the Member State of the applicant’s domicile or habitual residence must pay the costs of the local lawyer or other person entitled to give legal advice, as well as the translation of the application.53 There are also provisions concerning: legal aid in relation to enforcement; appeals; extrajudicial procedures or authentic instruments;54 and the procedure for transmitting and processing legal aid applications.55

The Commission has reported on the application of this Directive in practice.56 In its view, the Directive has been satisfactorily applied by Member States, although there is limited awareness of it or use of it in practice, and there are divergences between Member States on interpretation of some provisions, and a limited notion of ‘cross-border’ cases.

There are more detailed rules on legal aid in the specific field of maintenance obligations in cross-border situations.57 The right to legal aid in such cases applies also to enforcement, review and appeal procedures.58 It covers a long list of measures: pre-litigation assistance; legal assistance and representation in court; exemption from costs and fees; the costs incurred by the opposing party if the litigant loses and would be liable to pay them; interpretation; translation of documents; and travel costs (under the same conditions as the legal aid Directive).59 Legal aid also applies to maintenance support for children, although for some such cases, Member States can refuse legal aid if the case is considered ‘manifestly unfounded’ on the merits.60 In other cases, Member States can impose a means test or a merits test.61

The EU has sought to develop the area of e-justice, which could potentially help to address some of the concerns about the costs of access to legal systems. This has taken the form (inter alia) of the development of an online portal giving access to national justice systems, and facilitation of videoconferencing and remote translation and interpretation.62 However, the Commission has not assessed in any detail whether these measures have in practice facilitated access to justice, or whether further measures could be taken to this end.

Conclusions

The ECHR requires legal aid to be granted in sensitive family law proceedings, but outside that area the right to legal aid can only be claimed in particularly complex cases like Steel and Morris. A more advanced approach can be seen in EU law, which takes the ECtHR case law as a starting point but does not entirely rule out the possibility of extending it (to legal persons, for instance). It might be arguable that legal aid must be granted as regards other areas of particular relevance to EU law, such as the free movement of persons.

A more advanced approach can be seen in the form of EU legislation which contains specific rules on legal aid, although it should be noted that the UK has opted out of some of the legislation discussed here (the UK is covered by the Dublin Regulation, the first-phase asylum procedures and reception conditions Directives, and the civil law measures discussed above).

There is no CJEU case law yet on these specific rules, but they have shown a clear evolution towards widening their scope of coverage, to include the important issue of the detention of asylum seekers, disputes relating to asylum seekers’ benefits and the Dublin rules on allocation of asylum seekers. The rules are subject to a number of limitations that broadly reflect the ECtHR case law (means tests, merits tests, reimbursement) and it is arguable that even in the absence of express rules, the EU Charter requires legal aid to be granted to challenge the detention of irregular migrants other than asylum seekers and the general principles of EU law require legal aid to be granted as regards the administrative procedures determining an asylum application.

In the area of civil law, the EU law rules are useful in ensuring that legal aid is granted in maintenance cases with a cross-border element as well as (in less detail) other civil law cases with a cross-border element where the interests of justice require the grant of legal aid.

NOTES