WHAT IS THE LAW?
International human rights norms
The right to legal aid in criminal trials is globally recognised as part of the right to a fair trial.
Article 14(3)(d) of the International Covenant on Civil and Political Rights provides that:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality, to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
Article 6(3)(c) of the European Convention on Human Rights provides that:
Everyone charged with a criminal offence… the following minimum [right] 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.
Article 8(2)(d) of the American Convention on Human Rights provides that:
Every person accused of a criminal offense…. is entitled….to the inalienable right to be assisted by counsel provided by the state…
Article 16(4) of the Arab Charter on Human Rights provides that:
Everyone charged with a criminal offence shall be presumed innocent until proven guilty….and….shall enjoy the following minimum guarantees: the right to the free assistance of a lawyer who will defend him if he cannot defend himself or if the interests of justice so require, and the right to the free assistance of an interpreter if he cannot understand or does not speak the language used in court.
The African Charter on Human and People’s Rights does not have a provision for legal aid in criminal or civil trials. However, Article 8 of the Protocol to the African Charter on Human and People’s Rights on the Women in Africa provides that:
Women and men are equal before the law and shall have the right to equal protection and benefit of the law. States Parties shall take all appropriate measures to ensure:
effective access by women to judicial and legal services, including legal aid;
support to local, national, regional and continental initiatives directed at providing women access to legal services, including legal aid.
In contrast to criminal trials, the right to legal aid in civil trials is not explicit, nor is it as extensive. Generally, a limited right to legal aid in civil trials can be implied from the general right to a fair trial.
International and Regional Human Rights Cases and other Jurisprudence
UN Human Rights Committee
The Human Rights Committee, which supervises and monitors the implementation of the ICCPR, stated at paragraph 38 of its General Comment 32:
[A]rticle 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice” as is the existence of some objective chance of success at the appeals stage. In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused.
On the issue of legal aid in civil cases, the Human Rights Committee stated at General Comment 32 at paragraph 10:
The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in paragraph 3(d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so. For instance, where a person sentenced to death seeks available constitutional review of irregularities in a criminal trial but does not have sufficient means to meet the costs of legal assistance in order to pursue such remedy, the State is obliged to provide legal assistance in accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as enshrined in article 2, paragraph 3 of the Covenant.
Facts: in both cases, the complainant was charged with minor offences that would only result in a relatively minor financial penalty.
Held: it could not be shown that the interests of justice required the provision of legal aid so both cases were inadmissible
ZP v Canada (1991)
Facts: The Montreal Legal Aid Board refused the complainant’s request for legal aid to appeal his conviction on a rape charge on the grounds that his appeal lacked merit and it was not in the interests of justice to provide legal aid.
Held: the case was inadmissible because the complainant had not sufficiently substantiated his allegation that his right to legal aid was breached. This seems to indicate that a State has no obligation to provide legal aid for an appeal that has no objective chance of success, even if it is for a serious offence.
Facts: the complainant was tried for murder, found guilty and sentenced to death. He applied for legal aid to appeal his sentence, but it was refused.
Held: legal aid must be available to a person facing a sentence of death (if they cannot afford a lawyer), and this right applies to all stages of legal proceedings.
Borisenko v Hungary (2002)
Facts: the complainant was charged with theft and was detained for 16 days. He claimed that he was not provided with legal representation during his time in detention. The Hungarian government said that it provided a lawyer to the complainant, but the lawyer failed to appear on behalf of the complainant.
Held: Hungary had violated Article 14(3)(d) of the ICCPR: it had an obligation to ensure that legal assistance was available at all stages of the criminal proceedings.
European Court of Human Rights
The right to legal aid under the European Convention is discussed in this brief from the Open Justice Society Initiative in the UK. Below are some of the main cases.
Airey v Ireland (1979)
Facts: The complainant had been subjected to physical and mental violence by her husband for many years. However, she could not afford a solicitor to act for her in obtaining a decree of separation.
Held: even though there is no explicit right to legal aid for civil matters under the European Convention on Human Rights, the lack of legal aid here constituted a breach of the complainant’s right of access to a court in Article 6(1).
Artico v Italy (1980)
Facts: the complainant had been granted legal aid, but the lawyer assigned to him did not act for him because of other commitments and ill health. The complainant’s numerous requests for substitute counsel (and the lawyer’s numerous requests to be replaced) were denied by the court.
Held: the right to legal aid in criminal matters requires the provision of effective legal assistance. It is not satisfied by merely nominating a lawyer. The state should have either replaced the lawyer or ensured that he fulfilled his obligations. There was a breach of Article 6(3)(c).
Pakelli v Germany (1983)
Facts: the complainant was charged with a number of drug-related offences. He was refused legal aid on the grounds that he had sufficient means to pay for his own legal assistance.
Held: a person seeking legal aid bears the burden of showing that he cannot afford his own legal assistance. It was sufficient for the complainant to show some indications that he was unable to pay for a lawyer - there was no need to prove indigence beyond all doubt. Therefore, there was a violation of the right to legal assistance under Article 6(3)(c).
Quaranta v Switzerland (1991)
Facts: the complainant was charged with aggravated theft, robbery, criminal damage and using a motor vehicle without a driving license. He was given a suspended sentence of ten months’ imprisonment. During probation, he was further charged with drug use and trafficking. The Court refused legal aid on the basis that his case “did not give rise to particular difficulties”.
Held: In this case, the court had to consider a broad range of potential sentences, including a reactivation of his suspended sentence. Given the importance of the outcome to the complainant and the complexity of the factors involved, the interests of justice required that a lawyer be appointed for the complainant. Therefore, there was a breach of Article 6(3)(c).
Croissant v Germany (1992)
Facts: the complainant was charged with supporting a criminal organisation. At his request, he was granted two defence lawyers of his choice. However, a third lawyer was appointed against his will, and he was subsequently charged with the costs of the third lawyer.
Held: The third lawyer was appointed in the interests of justice (to ensure that the trial could be completed), and the costs claimed were not excessive. If the complainant could establish that he could not afford to pay the entire amount, German legislation allowed him to pay according to his means. As such, Germany had not breached Article 6(3)(c).
Pham Hoang v France (1992)
Facts: the complainant was charged with drug-related offences. On appeal, he was found guilty and charged with a significant financial penalty. He sought free legal assistance for an appeal on points of law, which was dismissed by the Court of Cassation (an appeals court). At the time of the appeal, the Court of Cassation was in a transition period, during which legal aid was not strictly compulsory in criminal cases.
Held: The legal issues were extremely complex. The complainant did not have the legal training necessary to represent himself on complex legal issues, so the interests of justice required a lawyer to be officially assigned to the case. Further, the proceedings were “fraught with consequences” for the complainant, given the large sums he would need to pay to the relevant authorities if he was found guilty. Therefore, there was a violation of Article 6(3)(c).
Benham v UK (1996)
Facts: the complainant was charged with failing to pay a debt, which carried a potential maximum penalty of three months’ imprisonment. The UK legal aid scheme did not provide for representation for such proceedings.
Held: this case involved a possible deprivation of liberty, and the applicable laws were relatively complex. As such, the interests of justice demanded that the complainant be given free legal representation. There had been a violation of Article 6(3)(c).
Facts: the complainant applied for legal aid in relation to divorce proceedings initiated by his wife. His application was refused on the basis that he was not “in a state of poverty”.
Held: domestic authorities may define the financial threshold for determining whether a person has sufficient means to pay for legal aid. The Italian government had sufficient guarantees to avoid arbitrariness in assessing eligibility for legal aid. Therefore there was no breach of Article 6(1). Article 6(3)(c) did not arise as the case concerned civil not criminal proceedings.
Salduz v Turkey (2008)
Facts: the complainant was a minor. He was arrested and detained on suspicion of participating in an unlawful demonstration in support of an illegal organisation. He was interrogated and made admissions in the absence of a lawyer. He was subsequently granted a legal aid lawyer. During his trial, he sought to retract his admissions on the ground that they had been given under duress.
Held: the absence of a lawyer during custody was a breach of his right to a fair trial under Article 6(1). This was not remedied by the fact that he was subsequently granted legal aid, and that he was given the opportunity to challenge his statement.
International and Regional materials
These are the official UN Guidelines on Access to Legal Aid in Criminal Justice Systems, adopted by the General Assembly in 2012. Drawing from international standards and recognised good practices, it provides guidance about the elements of an effective and sustainable legal aid system.
The European Commission on the Efficacy of Justice is a judicial body that is tasked with improving the efficiency and functioning of justice in Europe. This is a report from 2008: see particularly pp 15-56 for an analysis of legal aid in the European Union
This document is the product of a conference by non-governmental organisation (NGO) delegates from Ukraine, Africa, Asia and Eastern Europe. The objective of the conference was to discuss how legal aid could help promote and protect human rights, not to actually develop a right to legal aid. See also the Kyiv Conference Report.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (African Commission on Human and People’s Rights) (See Part G on Legal Aid and Legal Assistance)
Is there a right to legal aid in Australia?
At the federal level, there is no legislation about legal aid, and the common law does not provide for an absolute right to publicly funded lawyers, not even for defendants in criminal proceedings. However, where there are serious criminal charges involved, the judge will usually refuse to hear the matter if the accused is not represented by a lawyer (see Dietrich v The Queen). Hence, a right to legal aid can arise as an aspect of the common law right to a fair trial.
The Australian government's Productivity Commission released a report in December 2014 on access to civil justice in Australia, with a focus on legal aid in Volume 2.
Section 25(2)(f) of the Victorian Charter of Human Rights and Responsibilities (2006) provides that ‘’a person charged with a criminal offence is entitled….to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria….’’
The body that administers and provides legal aid is Victoria Legal Aid (VLA). Under the Legal Aid Act 1978 (Vic), the VLA only provides legal aid if it is of the opinion that the person cannot afford a private lawyer and it would be reasonable to give them legal assistance. It sets its own guidelines on the question of eligibility, and may withdraw legal aid if it deems that a person is no longer eligible.
Slaveski v Smith and Anor (2012) 34 VR 206
Facts: the defendant was charged with making a threat to kill. He was granted legal aid. However, counsel withdrew on two occasions, and legal aid was withdrawn because he had refused to follow reasonable advice.
Held: Victoria Legal Aid has discretion to grant legal aid. The judge may grant an adjournment or a stay if the absence of legal aid means would jeopardise the defendant’s right to a fair trial.
MK v Victoria Legal Aid  VSC 49
Facts: the applicant was charged with two counts of murder. He was granted legal aid on 27 November 2012, which would cover the costs of a solicitor and a barrister for the entire duration of the trial. In January 2013, VLA’s guidelines changed. Under the new guidelines, VLA would only fund an instructing solicitor for two and a half days. The defending barrister submitted that without an instructing solicitor he would be unable to do justice to the applicant’s case.
Held: the absence of an instructing solicitor for the duration of the trial meant that the applicant’s right to a fair trial would not be met. The trial was temporarily stayed.
Updated as of 7 February 2015