Enhancing Legal Aid Quality: Global Standards

1. INTERNATIONAL CONFERENCE„Enhancing the Quality of Legal Aid: General Standards for Different Countries” 22-23 November 2017 in Vilnius, Lithuania

2. Tendencies of legal aid quality standards in the case law of the European Court of Human Rights Dr. Danutė Jočienė Justice of the Constitutional Court of the Republic of Lithuania Assoc. Prof. of Mykolas Romeris University

3. EuropeanConventiononHumanRights (ECHR): • Art. 6 § 1 of the ECHR (Right to a fair trial/proceduralguarantees). • Art. 6 § 1: • - the right to a court in civil and criminal cases (including the right of access to a court); • - the right to a fair and public hearing; • - the right to an independent and impartial court; • - the right to a court within a reasonable time. • Art. 6 § 2 – presumption of innocence.

4. Art. 6 § 3/applicable to criminalcases: • Minimum rights of everyone charged with a criminal offence: • - to be informed promptly about the accusation; • - to have adequate time for the preparation of defence; • - c) 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; • - to examine witnesses; • - to have free assistance of an interpreter if he cannot understand the language.

5. Art. 6 § 1 and § 3 c): • NO Legal assistance expressisverbismentioned in Art. 6 § 1; • Developed in the case law of the ECtHR/especially from the right to a court, an effective access to a court/also from fair trial(equality of arms, adversarial proceedings, etc.). • Legal assistance – expressly mentioned in Art. 6 § 3 c): • - legal assistance of his own choosing; • - FREE legal assistance should be provided in criminal cases (BUT 2 conditions required): • IF NO sufficient means to pay; • WHEN the interests of justice require.

6. Art. 6 case law: • The European Court of Human Rights (ECtHR): • there is no obligation under the Convention to make legal aid available for all disputes in civil proceedings, • as there is a clear distinction between • Article 6 § 3 (c), which guarantees the right to free legal assistance under certain conditions in criminal proceedings, • and of Article 6 § 1, which makes NO reference to legal assistance • (Del Sol v. France, No. 46800/99, § 20, ECHR 2002‑II).

7. ECtHR case law/access to a court: • The right of access to a court is NOT absolute; • It may be subject to limitations (Jones and Others v. the UK, nos. 34356/06, 40528/06, § 186, ECHR 2014); • the limitation should not impair the very essence of the right; • should pursue a legitimate aim, and • there should be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Agromodel OOD v. Bulgaria, no. 68334/01, § 37, 24 September 2009).

8. ECtHR early case law: the right to a court/access: • Right to a court – is a right of EFFECTIVE accessto the courts/Access in fact, as well as in law. • Golder v. UK (No. 4451/70, judgmentof 21/02/1975) – a convicted person was refused permission by the Home Secretary to write to a solicitor with a view to instituting civil proceedings in libel against a prison officer. • ECtHR: Art. 6 § 1 does not state a right of access to the courts in express terms (§ 28). The terms of Art. 6 § 1 of the European Convention, taken in their context, provide reason to think that this right is included among the rights set forth (§§ 31-32). • […] it follows that the right of access constitutes an element which is inherent in the right stated by Art. 6 § 1 (§ 36).

9. Golder v. UK judgmentof 21/02/1975) • Violation of Art. 6 § 1 (NO effective access to a court/NO right to institute judicial proceedings without legal aid). • The refusal by the Home Secretary to let him contact a solicitor impeded his access to the courts in fact. • Therefore, in declining to accord the leave which had been requested, the Home Secretary failed to respect, in the person of Golder, the right to go before a court as guaranteed by Art. 6 § 1. • Achievement of the Golder case – interpretation of Art. 6§ 1 - the right to go before a court/access to a court/the right to institute judicial proceedings WAS interpreted as an element of the right to court.

10. ECtHR earlycase law: Airey v. Ireland (No. 6289/73, judgmentof 9/10/1979) – the right of effective access to the courts may entail legal assistance • A wife was refused legal aid to bring proceedings for an order of judicial separation. • The applicant was unable to find a solicitor willing to act on her behalf […]; • the reason why the solicitors she consulted were not prepared to act was that she would have been unable to meet the costs involved. • ECtHR: Viol. of Art. 6 § 1 – for the applicant’s access to be effective, she [an indigent person] requiredfree legal representation; • Without legal aid, she was NOT able to enjoy an effective right of access to the High Court for the purpose of petitioning for a decree of judicial separation. • Government’s argument that the right of access to a court DOES NOT impose positive obligations upon states to provide FREE legal aid, WAS REJECTED. • This position followed by the ECtHR in many other cases in which civil legal aid has been claimed as a part of effective access to a court.

11. ECtHR case law: Steel and Morris v. the UK (No. 68416/01, 2005)Legal aid [obligatory] in defamation cases • McDonald’s, the fast food chain, successfully brought an action for defamation against two applicants and was awarded 76,000 damage; • The UK had refused legal aid for the applicants who were indigent. • ECtHR – Viol. of Art. 6 § 1: • - it was a lot “at stake” for the applicants financially; • - the defamation case was very complicated (over 300 days of court hearing, etc.); • - the applicants had some pro bono help from lawyers; however, the disparity between the legal assistance enjoyed by the applicants and McDonald’s have given rise to unfairness […].

12. Steel and Morris v. the UK - A clear departure from a series of defamation cases, where legal aid WAS NOT required • - the Commission declared inadmissible an earlier application under Art. 6 § 1 by these same applicants (see H.S. and D.M. v. the UK), observing that • “they seem to be making a tenacious defence against McDonald's, despite the absence of legal aid ...”. • That decision was, however, adopted over a year before the start of the trial, at a time when the length, scale and complexity of the proceedings could not reasonably have been anticipated. • 72. […] the Court finds that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of armswith McDonald's.

13. ECtHR case law: Obligation to provide legal aid/elements under consideration: • - reference to the facts of each case; • - Importance of what is “at stake” for the applicants; • - the complexity of the relevant law and procedure; • - the applicant’s abilities to representhimself/herself effectively; • - NO arguable case on the facts, NO legal aid. • The ECtHR examines also the extent to which the applicants were able to amount an effective defencedespite having no legal aid. • There is no absolute right to be present at a hearing concerning non-criminal matters, personal participation can be considered necessary in cases where the character and lifestyle of the person concerned is directly relevant to the subject matter of the case, or where the decision involves the person’s conduct • (Karpenko v. Russia, § 90, 13/03/2012, Buterlevičiūtė v. Lithuania, § 64, 12/01/ 2016).

14. CASE OF URBŠIENĖ AND URBŠYS v. LITHUANIA (No. 16580/09, 8/11/2016) • VIOLATION OF ART. 6 § 1 (Legal Aid NOT granted to the company/legal person): • The applicants complained that the refusal of legal aid in the proceedings concerning the activities of their company had deprived them of effective access to court. • They also complained that they had not been properly notified of the Court of Appeal hearing of 6 October 2009. • The Government: no explicit obligation under the Convention to make legal aid available in civil disputes, but […] the denial of legal aid could, in certain circumstances, amount to a failure to ensure a fair hearing under Article 6 § 1.

15. CASE OF URBŠIENĖ AND URBŠYS v. LITHUANIA/arguments of the ECtHR: (No. 16580/09, 8/11/2016, Viol. of Art. 6 § 1 for refusing legal aid) • - there is NO a consensus or even a consolidated tendency among the States Parties to the Convention as regards the granting of legal aid to legal entities in civil disputes. • - the law of a substantial number of States does not provide any form of legal aid to them; • - the fact that the claimant company was not continuously represented by a legal professional cannot be regarded as equal to the applicants being refused legal aid and cannot be considered as guaranteeing the applicants an effective defence and an ability to present their case properly and satisfactorily […].

16. Jelcovas v. Lithuania (No. 16913/04, judgmentof 19/08/2011) • Claim:no effective right of access to court (no actual legal aidprovidedto complain for damages for his allegedly unlawful detention). • The Applicant: the unavailability of legal assistance for civil proceedings effectively denied the applicant access to court. • ECtHR:Meansby which a State ensures effective access to civil courts is thus within its margin of appreciation (Winer v. the UK,No. 10871/84, Commission dec. 10 July 1986). • 88. Even so, [...] Art. 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer • when such assistance proves indispensable for effective access to court, • either because legal representation is rendered compulsory, or • by reason of the complexity of the procedure or of the case (Airey v. UK case, §§ 26).

17. Jelcovas v. Lithuania: • 92. The Court further notes that there is no indication of M.M., as the applicant’s defence lawyer in the criminal proceedings for robbery, being negligent or superficial in drawing his conclusion as to the possibility of success of the civil litigation [which] was earlier supported by identical decisions of the domestic courts. • The Court observes that on 26 June 2003 the Telšiai District Court granted the applicant’s request for free legal aid and appointed M.M., the counsel who had represented the applicant before the trial court in criminal proceedings for robbery, to assist the latter. After being put on notice by the applicant of M.M.’s inactivity, the District Court reacted quickly and urged M.M. to act. In these circumstances, the Court cannot find that the domestic court remained inattentive in response to the applicant’s efforts to have legal proceedings for damages initiated (see, by converse implication, Daud v. Portugal, 21 April 1998, §§ 40-42). • The Court also observes that it is not for a domestic court to oblige a lawyer, whether appointed under a legal-aid scheme or not, to lodge any remedy contrary to his or her opinion as to the prospects of success of such a remedy […]. • 93. The Court is not ready to hold the State responsible for the applicant’s inability to start court proceedings for damages. • It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

18. Jelcovas v. Lithuania/someprinciplesoftheECtHRasregardsthelegalrepresentation: • A lawyer, even if he or she is officially appointed to represent an accused in court proceedings, cannot be considered as an organ of a State. • the conduct of legal assistance is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal-aid scheme or privately financed, • and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention (Rutkowski v. Poland (dec.), ECHR 2000‑XI). • the special guarantees ofthe defence rights in criminal proceedings are not applicable in the same way in civil proceedings (Tuziński v. Poland (dec.), no. 40140/98, 30 March 1999). • [However] the State should not remain passive when problems with legal representation are brought to itsattention. • It will depend on the circumstances of the case whether the relevant authorities should take action (Daud v. Portugal, 21/04/1998, 1998‑II).

19. Article 47 of the Charter of Fundamental Rights of the EU/Effectiveremedy/provicsionssimilar to the ECHR Art. 6: • “... • 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.”

20. Judgment of the Court of Justice of the EU: DEB Deutsche Energiehandels- und BeratungsgesellschaftmbH v. Germany (No. C-279/09) of 22/12/2010): • […] the assessment of the need to grant that [legal] aid must be made on the basis of the right of the actual person whose rights and freedoms as guaranteed by EU law have been violated, rather than on the basis of the public interest of society […]. • The Court of Justice also held that: • “52. It is apparent from the examination of the case‑law of the ECtHR 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; […] in particular, its [litigation] economic importance. • (The ECtHR madereference to thiscaseinthe case Urbšienė and Urbšys v. Lithuania)

21. Other cases v. Lithuania raisingsomeaspectsoflegalrepresentation: • Švenčionienė v. Lithuania (No. 37259/04, judgmentof 25/11/2008), Viol. of Art. 6 § 1 (fairhearing/adversarialproceedings, notproperlyinformedaboutthehearing). • The applicant complained that she had not been duly advised of the hearing on appeal and, therefore, had not been able actively to participate in it and present her arguments. • Jakelaitis v. Lithuania (No. 17414/05, Decision 16/12/2008) – inadmissible, 6 months([...]the lawyer's duty to inform his client that the Supreme Court had adopted a decision and to apprise him of the reasoning and the operative part of that decision[...]).

22. Other cases v. Lithuania raisingsomeaspectsoflegalrepresentation: • D. D. v. Lithuania (No. 13469/06, 14/02/2012) – proceduralguaranteesofpersonswithmentaldisorders; properlegalrepresentationandprotectionoftheirrighs (includingbeforethecourts). • Violationof Art. 6 § 1: fairnessoftheguardianshipproceedingsbeforethecourt/NO properlegalasistance. • - because of the conflicting interests of theapplicantand her legal guardian, her guardian’s lawyer could in no way have represented her interests properly. • - in the view of the Court, the interests of a fairhearing required that the applicant be granted her own lawyer. • - presenceof a representative of the social services and the district prosecutor inthe hearing on the merits did not make the proceedings truly adversarial. • D.D. v. Lithuania casefollowed (see § 116) thestandardsestablishedbytheECtHRinthecaseofStanev v. Bulgaria[GC], No. 36760/06, 17/01/2012.

23. Salduz v. Turkey, [GC], No. 36391/02, Judgment of 27/11/2008/Defence of minor in policy custody through legal asistance/obligation to have a lawyer from the first police interview/interrogation • VIOLATION ofArticle 6-3-c: Use in evidence of confession to police of a minor who had been denied access to a lawyer despite the fact that he denied its accuracy. • In order for the right to a fair trial under Art. 6 § 1,access to a lawyer had to be provided, as a rule, from the first police interview of a suspect. • The applicant's age was also a material factor; • [...]relevant international law materials showed, [that] access to a lawyer was of fundamental importance where the person in police custody was a minor. • even though the applicant had had the opportunity to challenge the evidence against him at his trial and on appeal, the absence of a lawyer during his period in police custody had irretrievably affected his defence rights. • Article 41: Indication that retrial was most appropriate form of redress.

24. Stanev v. Bulgaria [GC] No. 36760/06, Judgmentof 17/01/2012 • Article 6-1/Access to court/VIOLATION (andmanyotherviolationsfound) • Legalproblem(amongmanyothers) - Lackofdirectaccess to a courtforpersonseekingrestorationofhislegalcapacity; • ECtHR:Article 6 § 1 should be interpreted as guaranteeing in principle that anyone who had been declared partially incapablehad direct access to a court to seek restoration of his or her legal capacity. • Article 46: should the applicant object to such placement [to socialhouse], the authorities should re-examine his situation without delay. • The Court recommended that the respondent State envisage the necessary general measures to ensure the effective possibility of such [direct] access to a court.

25. Case of the Centre for Legal Resources on behalf of Valentin Campeanu v. Romania [GC], No. 47848/08, Judgment of 17/08/2014/an important step forward in the sphere of legal representation: • Article 34 Locus standi/Standing of non-governmental organisation to lodge application on behalf of deceased mental patient • Article 2 - Positive obligations/Failure to provide adequate care for HIV positive mental patient: violation • Article 46-2 Execution of judgment/ Measures of a general character • Respondent State required to take general measures to ensure independent representation for the mentally disabled. • The application was lodged by a non-governmental organisation, the Centre for Legal Resources (CLR), on behalf of a young Roma man MrCâmpeanu, who died in 2004 at the age of 18. MrCâmpeanu had been placed in an orphanage at birth after being abandoned by his mother. • ECtHR: • - dismissed the Government’s preliminary objection that the CLR had no standing to lodge the application; • - it accepted that the CLR could not be regarded as a victim […]. However, in the exceptional circumstances of the case […] CLR should act as MrCâmpeanu’s representative, even though it had no power of attorney to act on his behalf and he had died before the application was lodged. • - the CLR had already represented MrCâmpeanu before the domestic authorities; this representation was not questioned in any way. • - the State had not appointed a competent person or guardian to take care of his interests despite being under a statutory obligation to do so. • In such cases, it was essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. The CLR thus had standing as MrCâmpeanu’sde facto representative.