The Right to Access to Court under the Caselaw of the European Court of Human Rights —
The right to access to court is one of the components of the right to fair trial protected by Article 6 of the European Convention on Human Rights. Although the text of the Convention alone does not contain a specific reference to the right to access the court it is established by the caselaw of the European Court of Human Rights that the right to access to court is an inherent part of the fair trial guarantees provided by Article 6. In one of its early decisions, Golder v. UK, the Court held that Article 6 “secures to everyone the right to have any claim related to his civil rights and obligations brought before a court or tribunal.”
The right to access to court is not an absolute right and some limitations of this right may be compatible with the Convention if they have a legitimate purpose and are proportional to the goal they aim to achieve. The Convention guarantees however “rights that are practical and effective and not theoretical and illusory” and therefore under Article 6.1 the states are obliged to secure to everybody an effective right to access to court. Legal or factual limitations of this right may be found to be in violation of the Convention if they impede applicant’s effective right to access the court.
One of the potential factual limitations of the right to access to court is the question of excessive court fees. In the case of Kreuz v. Poland the Court held that while the requirement to pay court fees in civil cases does not violate Article 6, para.1 per se, any restriction of the right to access to court should meet several requirements. To be compatible with Article 6, para. 1, a restriction on the right to access should pursue a legitimate aim and there should be a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. In Kreuz the issue at stake was the refusal of the domestic courts to grant an exemption from court fees amounting to the average annual salary in the country. Considering the amount of the fee and the fact that the refusal to grant a waiver in this case has resulted in discontinuing the claim, the Court found that the domestic authorities had failed to secure a proper balance between the interest of the state in collecting court fees and the interest of the applicant in bringing his claim to the courts. In these circumstances and in the absence of evidence of applicant’s ability to pay, the Court found the fee excessive and the refusal to grant exemption in violation of the applicant’s right to access to court.
In some cases, states’ obligations under Article 6.1 may require the state to take some positive steps in order to secure an effective right to access to court to everyone. In the case of Airey v. Ireland , the European Court held that although the Convention does not explicitly provide for a right to free legal assistance in civil cases, in some circumstances it may oblige the state to provide legal aid in civil disputes. Article 6.1 may require the states to provide free legal assistance when such assistance proves indispensable for securing an effective access to court either because legal representation is mandatory under the domestic law or because of the complexity of the procedure or the case.
In this case the Court held that the mere possibility to appear in person in the proceedings would not satisfy the requirements of the Convention if it cannot be reasonably expected that the person will be able to effectively represent her/himself. The Court rejected the government’s argument that the Convention guarantees civil and political and not social and economic rights and therefore the obligation to provide legal aid is beyond the scope of the Convention and held that fulfillment of a duty under the Convention may sometimes require “positive action on the part of the State.” In such circumstances the state “cannot simply remain passive” and “there is no room to distinguish between acts and omissions.”
While the Convention obliges the states to secure an effective right to access to court, the states may select the method of securing this right, whether by providing legal aid in civil cases, by simplifying the procedural requirements or through other means. Legal aid might be required if legal representation is mandatory, or if there are complex issues of law and fact. In Airey, the applicant was seeking legal aid in order to obtain a decree of judicial separation from her abusive husband in a relatively complicated procedure.
In contrast, in the criminal law context, the Convention provides for a number of specific fair trial rights for persons charged with criminal offenses in addition to the general fair trial guarantees of Article 6.1. The European Court has focused on the right to access to free legal assistance, provided by Article 6.3(c) of the Convention, as the primary means of securing access to court for defendants in criminal proceedings.
Article 6.3(c) of the Convention guarantees to persons charged with a criminal offense the right to have legal representation, including the right to access to free legal assistance if “he has no sufficient means” and “the interests of justice so require.” Through interpretation of this provision, the European Court of Human Rights has established that the states are obliged to provide free legal representation if two conditions are met: the defendant does not have enough means (financial criterion), and free legal assistance is required by “the interests of justice” (substantive criterion).
First, the Convention requires a state to provide free legal assistance to a person charged with a criminal offense only if that person lacks sufficient means to retain a lawyer independently. Neither the Convention nor the Court’s jurisprudence indicates a specific quantity of money defining what constitutes sufficient means. While the Court decides on the specific circumstances in every case whether or not a person falls within this requirement, the burden of proof to demonstrate lack of sufficient means falls on the person charged with the offense. The defendant is not required to prove lack of sufficient means beyond all doubt and an offer to prove lack of means in the absence of clear indications to the contrary satisfies the means test of Article 6.3(c).
Second, under the Convention a state is required to provide free legal assistance to an indigent defendant only if this is necessary in the “interests of justice.” To determine whether the interests of justice invoke the state’s obligation, the European Court takes several factors into consideration: the complexity of the case as a matter of law and as a matter of fact, the ability of the accused to understand the case, and the accused’s ability to defend himself in person. But probably the most weight in the Court’s decision has the factor what is “at stake” for the defendant, specifically the severity of the potential sentence, as a factor that alone can trigger a state’s obligation to provide free legal assistance.
In the case of Quaranta v. Switzerland (1991), for example, the applicant was subject to a maximum sentence of three years for drug trafficking. Even though he was sentenced to only 6 months for the crime, “free legal assistance should have been afforded by the mere fact that so much was at stake.” Moreover, in Benham v. UK (1996), the European Court held that “where deprivation of liberty is at stake the interests of justice in principle call for legal representation.” In that particular case, the applicant was subject to a deprivation of liberty of up to three months for non-payment of community charge. This principle was confirmed in Perks and others v UK (1999).
If the financial and the substantive criteria are met the state is under an obligation to provide free legal assistance to the defendant and the question of whether the lack of legal assistance has prejudiced the actual proceedings is irrelevant for finding a violation of Article 6.3(c). Under the Convention the states are obliged to guarantee an effective right to free legal representation; therefore failure to provide enough time and facilities for the state appointed lawyer to prepare for the case constitutes a violation of the Convention. Although a state cannot be held responsible for every shortcoming of the defense of the court appointed lawyer, a state will be found in violation of the Convention if it fails to ensure that the defendant enjoys effectively the right to free legal representation. Thus, in Artico, for instance, the state’s failure to replace a less than diligent court appointed lawyer, or to oblige him to fulfil his duties, was found to be in violation of the applicant’s effective right to free legal representation.
The right to free legal assistance applies to the proceedings as a whole, including the pretrial proceedings, the trial stage, the appellate proceedings and the cassation proceedings if applicable. Factors to consider in determining whether the interests of justice require free legal assistance in appellate or cassation proceedings include the nature of the proceedings, the powers of the appellate court (or the court of cassation, respectively), the capacity of an unrepresented appellant to present legal argument and the importance of the issue at stake in view of the severity of the sentence.
The Court addressed the question of reimbursement of the costs for the state appointed lawyer after conviction in the case of Croissant v. Germany. The general requirement for reimbursement of trial related fees, including the costs of the state appointed lawyer, was found per se compatible with Article 6.3(c) of the Convention because the enforcement proceedings generally follow the criminal proceedings and cannot affect their fairness. The question of a possible post conviction reimbursement of the attorney’s fees by an indigent defendant, however, was not decided in this case.
The European Court of Human Rights through interpretation of the Convention has established a number of specific guarantees to the right to access to court in civil cases and the right to free legal representation in criminal cases, which aim to secure that the fair trial provisions will be applied equally to everybody, irrespective of their financial situation. These guarantees have been developed over the time and the Council of Europe jurisprudence reflects an increasing concern with access to justice.