The ‘Legal Aid’ Issue

Abstract

In this chapter, the author discusses when legal aid must be afforded a civil litigant. This is referred to as legal aid issue. The author analyzes the Court’s case law regarding this issue. While the national authorities are responsible for ensuring that also indigent persons have an effective access to court, and are given a proper and effective opportunity to participate in the proceedings, the authorities are given a significant discretion as to the means which are used in individual cases. Typically, an opportunity to participate in person will suffice from the point of view of the ‘fair hearing’ right of ECHR Article 6(1). In certain situations, however, public legal aid will be necessary from the standpoint of the fairness standard, or alternatively from the standpoint of the right to effective access to court. Whether this is the case depends on a range of factors, which are subjected to analysis and scrutiny by the author. Furthermore, the author investigates when inadequate or uneffective legal assistance from a legal aid lawyer may give rise to a violation of the ‘fair hearing’ right.