COMMITTEE OF MINISTERS
(Adopted by the Committed of Ministers on March 2, 1978 at the 284th meeting
of the Ministers' Deputies)
The
Committee of Ministers,
Considering that the right of access to justice and to a fair hearing, as
guaranteed under Article 6 of the European Convention on Human Rights, is an
essential feature of any democratic society;
Considering that it is therefore important to take all necessary steps with
a view to eliminating economic obstacles to legal proceedings and that the
existence of appropriate systems of legal aid will contribute to the
achievement of this aim especially for those in an economically weak
position;
Considering that the provision of legal aid should no longer be regarded as
a charity to indigent persons but as an obligation of the community as a
whole;
Considering that facilitating the availability of legal advice as a
supplement to legal aid for persons in an economically weak position is of
equal importance in the elimination of obstacles to access to justice.
Recommends the governments of member states to take or reinforce, as the
case may be, all measures which they consider necessary with a view to the
progressive implementation of the principles set out in the appendix to this
resolution;
Invites
the governments of member states to inform the Secretary General of the
Council of Europe periodically of the measures taken to follow up the
recommendation contained in this resolution.
Appendix
to Resolution (78) 8
Part I -
Legal aid in court proceedings
1. No one
should be prevented by economic obstacles from pursuing or defending his
right before any court determining civil, commercial, administrative, social
or fiscal matters. To this end, all persons should have a right to necessary
legal aid in court proceedings. When considering whether legal aid is
necessary, account should be taken of:
-
a
person's financial resources and obligations;
-
the
anticipated cost of the proceedings.
2. Legal
aid should be available even where a person is able to pay part of the costs
of his proceedings. In that case, legal aid may be available with a
financial contribution by the assisted person which shall not exceed what
that person can pay without undo hardship.
3. Legal
aid should provide for all the costs necessarily incurred by the assisted
person in pursuing or defending his legal rights and in particular lawyers'
fees, costs of experts, witnesses and translations.
It is
desirable that, where legal aid is granted, there should be exemption from
any requirement for security of costs.
4. It
should be possible for legal aid to be obtained in the course of the
proceedings, if there is a change in the financial resources or obligations
of the litigant or some other mater arises which requires the granting of
legal aid.
5. Legal
aid should always include the assistance of a person professionally
qualified to practise law in accordance with the provisions of the state's
regulations, not only where the national legal aid system always of itself
so provides, but also:
-
when
representation by such a person before a court of the state concerned is
compulsory in accordance with the state's law;
-
when
the competent authority for the granting of legal aid finds that such
assistance is necessary having regard to the circumstances of the
particular case.
The
assisted person should, so far as is practical, be free to choose the
qualified person he wishes to assist him. The person so appointed should be
adequately remunerated for the work he does on behalf of the assisted
person.
-
When
considering whether legal aid should be granted, the authorities may:
-
take
into consideration, having regard to the circumstances of the particular
case, whether or not it is reasonable for proceedings to be taken or
defended;
-
take
account of the nature of the proceedings and, if need be, grant aid only
for costs other than those relating to assistance by a qualified person as
referred to in principle 5.
-
The
legal aid system should provide for a review of a decision to refuse a
grant of legal aid.
-
The
responsibility for financing the legal aid system should be assumed by the
state.
-
The
limits of financial eligibility for legal aid should be kept under review,
especially having regard to rises in the cost of living.
-
The
legal aid system should provide for the granting of legal aid, in
accordance with the priciples contained in the present resolution, in any
proceedings for the recognition or enforcement of a decision in the state
concerned of a decision given in another state.
-
The
state should take the necessary steps to bring the provisions of the legal
aid system to the attention of the public and other interested parties,
particularly those agencies in the state to which potential applicants
might turn for help.
Part II
- Legal advice
-
The
state should ensure that a person in an economically weak position should
be able to obtain necessary legal advice on all questions arising out of
the matters mentioned in principle1, which may affect his rights or
interests.
-
Legal
advice should be available either free or on payment of a contribution
dependent on the resources of the person seeking the advice.
-
The
state should ensure that information on the availability of legal advice
is given to the public and those to whom a person in need of legal help
may turn for help.
-
The
state should take appropriate steps to see that such information on the
legislation of the state as is necessary is available to advice-giving
agencies.
-
The
state should pay particular attention to the need for legal advice when
proceeding may have to be taken in another state
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