CouncilEurope

Additional Protocol to the European Agreement on the Transmission of Applications for Legal Aid

(ETS No. 179)

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Explanatory Report

The text of this explanatory report, prepared by the Multilateral Committee on the European Agreement on the Transmission of Applications for Legal Aid (T-TA) and adopted by the Committee of Ministers, meeting at Deputy level, at its 755th meeting on 8 June 2001, does not constitute an instrument providing an authoritative interpretation of the Protocol, although it might be of such nature as to facilitate the application of the provisions contained therein. The Protocol has been opened for signature in Moscow, on 4 october 2001, on the occasion of the 24th Conference of the European Ministers of Justice.

Introduction

1. The expression "right to a fair trial" is often used by the European Court of Human Rights to include all the safeguards offered to persons coming before the courts under Article 6 of the European Convention on Human Rights (hereinafter referred to as "the ECHR"). The term covers all the procedural safeguards to enable persons to exercise the rights provided for in the ECHR. One of the safeguards laid down in Article 6 is legal assistance which States Parties to the ECHR have to provide to everyone within their jurisdiction in order to guarantee access to justice, if the persons concerned lack sufficient means and if the interest of justice so requires.

2. At its 5th meeting which took place at the headquarters of the Council of Europe in Strasbourg on 11 September 2000, the Multilateral Committee on the European Agreement on the Transmission of Applications for Legal Aid (T-TA) decided to prepare an Additional Protocol to the European Agreement on the Transmission of Applications for Legal Aid (ETS No. 92, hereinafter referred to as "the Agreement"), which was opened to signature on 27 January 1977.

3. The 1977 Agreement, which has been widely ratified by States, is designed to eliminate economic obstacles to proceedings and to permit persons in an economically weak position more easily to exercise their rights. Accordingly, the Agreement provides that persons having their habitual residence in the territory of a Party may apply for legal aid in civil, commercial or administrative matters in the territory of another Party to the Agreement. The Agreement sets out the procedure to be followed and, in particular, makes it possible for the person concerned to submit an application through the intermediary of the State of habitual residence.

4. Against this background, it was considered important to identify ways to improve the operation of the Agreement, in particular as regards:

i. co-operation between Central Authorities;

ii. communication between lawyers and applicants, and

iii. improvement of the efficiency in the application of the Agreement by Central Authorities.

5. It was therefore decided that, in view of the importance of the issues to be added to the Agreement, it was necessary to draft an Additional Protocol to this instrument. The main aim of this Additional Protocol is to amend and supplement in certain areas, as between the Parties to the Protocol, the provisions of the Agreement.

6. In doing so, account has been taken, inter alia, of:

i. the problems encountered by the States Parties in the operation of the Agreement;

ii. the relevant international legal instruments of the Council of Europe in this area and, in particular, the ECHR and its case-law, Resolution (76) 5 on legal aid and advice in civil, commercial and administrative matters, Resolution (78) 8 on legal aid and advice, Recommendation No. R (81) 7 on measures facilitating access to justice and Recommendation No. R (93) 1 on effective access to the law and to justice for the very poor, and

iii. of the results of the numerous bilateral and multilateral meetings organised by the Council of Europe in the framework of its programme of legal co-operation (see, for instance, the "Compendium of Conclusions of bilateral and multilateral meetings in the field of legal aid organised by the Council of Europe, September 2000").

7. As regards more particularly the ECHR, it should be noted that paragraph 1 of Article 6 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal (see the Golder judgment of 21 December 1975, Series A, No. 18, p. 18, paragraph 36) and therefore guarantees to everyone the right to have access to justice (see the Airey judgment of 9 October 1979, Series A, No. 32).

Commentary on the Articles of the Additional Protocol

Article 1 – Purpose and definition

8. Article 1 deals with the purpose of this Protocol and with the definition of "requested Party" for the purpose of both the Agreement and this Protocol.

9. The scope of application of this Protocol corresponds to that of the Agreement, that is the transmission of applications for legal aid. The Protocol is therefore to be applied in the framework of the procedure for the application for legal aid, which may end by a decision of granting or refusing legal aid.

Article 2 – Co-operation between Central Authorities

10. Article 2 deals with co-operation between Central Authorities in the implementation of the Agreement. Indeed, it should be noted that there is a need for these Authorities to afford each other as quickly as possible the widest measure of mutual assistance in respect of applications for legal aid in civil, commercial or administrative matters which fall within the jurisdiction of the competent authorities of the requested Party.

11. This means that, subject to the provisions of the Agreement, the competent authorities of the requested Party shall not reject applications made under the Agreement without considering their merit, but shall process them in the most effective way possible in accordance with domestic procedures, which may include the seeking of further information. This implies for example that the Parties shall not reject applications made under the Agreement, for instance, merely because of formal mistakes or lack of sufficient information.

Article 3 – Communication between lawyers and applicants

12. Article 3 deals with communication between lawyers and applicants. The ECHR deals specifically with questions of interpretation for criminal proceedings. Paragraph 3.e of Article 6 provides that everyone charged with a criminal offence has a minimum right "to have the free assistance of an interpreter if he cannot understand or speak the language used in court".

13. Although paragraph 3.e of Article 6 refers to criminal proceedings, the right guaranteed has to be interpreted in the framework of the general right to a fair trial and of access to justice contained in Article 6 of the ECHR and, therefore, applies also to other types of proceedings (for example in civil, commercial and administrative matters).

14. A number of judgments have been given by the European Court of Human Rights on this question. Reference should be made in this context to the Kamasinski v. Austria, judgment of 19 December 1989 (Series A, No. 168) and the Artico v. Italy, judgment of 13 May 1980 (Series A, No. 37), which are important for the interpretation of sub-paragraphs c and e of Article 6.3 of the ECHR. Moreover, in the Luedicke, Belkacem and Koç case (paragraph 48), (1) the Court explains that the provision of paragraph 3.e is "construed in the context of the right to a fair trial guaranteed by Article 6".

15. As regards more particularly paragraph 1 of Article 3, the requested Parties have to ensure that:

a. When the applicant does not share a common language with the requested Party, lawyers appointed to represent such applicants can communicate with these applicants in a language readily understood by them (see also paragraph i of Recommendation No. R (99) 6) (2) or that

b. the costs for translation and/or interpretation of the communications between lawyers and applicants are covered. As regards paragraph 1.b of Article 3, it should also be noted that the law relating to legal aid in some countries covers the costs of translation and/or interpretation, including the costs which occurred before court proceedings. Costs necessary for proceedings are covered in several States and they interpret this provision in such a manner as to provide legal aid for any translations and/or interpretation necessary for communications between applicants and lawyers.

16. As regards paragraph 2 of Article 3, the Protocol provides that where it is not practicable to apply paragraph 1 of Article 3, the requested Party shall provide appropriate means to ensure the effective communication between lawyers and applicants. Paragraph 2 of Article 3 shall only apply when it is not practicable to apply paragraph 1 and therefore paragraph 2 is subsidiary to paragraph 1. Examples in which it is not practicable for the requested Party to apply paragraph 1 of Article 3 may include, inter alia, the excessive physical distance between lawyers who are able to communicate with applicants in a language readily understood by them and the place where the proceedings are taking place or the situation in which the translation of texts is made impossible by their excessive length or by the lack of understanding of the language (or the dialect) used by applicants.

17. Paragraph 3 of Article 3 provides that the form used to transmit applications for legal aid under the Agreement and this Protocol shall indicate the language/s readily understood by applicants. This is in particular to facilitate the task of the requested Parties when applying the provisions of Article 3.

Article 4 – Efficiency of the procedure

18. Article 4 deals with the improvement of the efficiency in the application of the Agreement by Central Authorities.

19. This provision reflects the content of Article 6, paragraph 1 of the ECHR, which provides everyone with the right to a fair and public hearing within a reasonable time. Moreover, in this context, reference should be made to the recommendations adopted by the 20th and 23rd Conferences of European Ministers of Justice which took place in Budapest and London in 1996 and 2000 respectively, which call, inter alia, for making justice more efficient, as "justice delayed is justice denied".

20. It is therefore important that the competent authorities endeavor to work towards concluding the processing of applications for legal aid under the Agreement within six months following the receipt of these applications.

21. In the light of this consideration, this Protocol requires receiving Central Authorities to:

i. acknowledge receipt of the applications;

ii. report six months after reception of a completed request, to transmitting Central Authorities on the progress of the application and any difficulties which are preventing a decision (see also in this context paragraph k of Recommendation No. R (99) 6 (3)), and

iii. take all necessary steps to ensure that, whenever possible, a first instance decision is made in respect of all applications within six months, provided all information needed has been supplied.

22. Moreover, it should be noted in this context that as regards family law cases and according to Recommendation No. R (91) 9 on emergency measures in family matters, "courts or competent authorities should be ready to act at any time in extremely urgent cases" (Principle 2), and cases concerning persons living abroad and applying for legal aid and advice, "should be brought before the courts or other competent authorities without delay and dealt with rapidly" (Principle 4).

Articles 5-11 – Final clauses

23. The provisions contained in Articles 5 to 11 are, for the most part, based on the "Model final clauses for conventions and agreements concluded within the Council of Europe" which were approved by the Committee of Ministers of the Council of Europe at the 315th meeting of their Deputies in February 1980. Most of these Articles do not, therefore, call for specific comments, but the following points require some explanation.

24. This Protocol is opened to signature only to the signatories to the Agreement. The Additional Protocol will enter into force one month after two Parties to the Agreement have ratified it (Article 6). No reservations are allowed to the provisions of this Protocol (Article 8).


Notes:

(1) Judgment of 28 November 1978, Series A, No. 29.

(2) [governments of member States are recommended] "i. to provide, whenever possible, a lawyer who speaks a language which the applicant understands".

(3) [governments of member States are recommended] "k. to deal with applications within a reasonable time and require receiving central authorities to report to transmitting central authorities six months after the date of receiving a complete application, if a decision has not been made, giving details on the progress of the application and any difficulties which are preventing a decision".