With regard to legal aid in civil matters, the Human Rights Committee stated in its general comment No. 32 in paragraph 10: Any person charged with an offence. the following minimum right to defend himself in person or through a legal adviser of his choice or, if he does not have sufficient resources to pay the lawyer, to receive him free of charge if the interests of the administration of justice so require. Although there is no express right to legal aid in civil matters under the European Convention on Human Rights, the absence of legal aid in this case constitutes a violation of the applicant`s right of access to a court under Article 6, paragraph 1. Facts: The complainant was charged with a number of drug offences. He was refused legal aid on the grounds that he had sufficient resources to pay for his legal aid himself. Facts: The complainant was charged with theft and detained for 16 days. He claimed that he did not receive legal advice while in detention. The Hungarian Government stated that it had provided the complainant with a lawyer, but that it had not appeared on behalf of the complainant.
„The applicant`s legal team shall: (a) prepare and present legal arguments; (b) assist the candidate in the selection of the jury; (c) discuss the conduct of the review with the applicant on a daily basis; (d) applications from the applicant`s family; (e) receive instructions from the applicant concerning the testimony of disputed witnesses; (f) prepare for the cross-examination of such witnesses; (g) to examine the expert opinions relied on by the Prosecution and the evidence provided therein. He or she may also need to seek the advice of other experts in the relevant fields when preparing for cross-examination of experts; (h) Have in-depth knowledge of each testimony and that of the 30 witnesses cross-examined during the interrogation (754 pages); (i) Cross-examine prosecution witnesses, if necessary. The team must have ready access to the documents required for this cross-examination and, if the witness presents testimony that disagrees with previous testimony or the testimony of another witness, be able to identify the witness and confront him or her with this inconsistency. I have been told and accept that the defence counsel`s brief occupies approximately 141/2 files of lever sheets, including 41/2 volumes of statements, 2 volumes of DNA notes and 21/2 volumes of firearms notes. I have attached to these reasons a document prepared by counsel detailing the scope of these documents; (j) make important policy decisions, such as whether to challenge a particular piece of evidence and whether evidence should be requested on behalf of the applicant. I think this last question in this process is potentially boring; (k) consulting with potential defence witnesses and handling logistics with a view to bringing them before the court in a timely manner; (l) consult with prosecution witnesses, as appropriate; (m) dealing with unforeseen events that may occur regularly in the course of criminal proceedings. The team must also obtain instructions from the applicant regarding these events; (n) issue records and serve the necessary summonses to appear in the course of the proceedings; (o) To listen carefully to what is certainly a lengthy and rather complex indictment and, if necessary, to prepare and formulate exceptions; and (p) dealing with the consequences of the judgment. I consider the proposal to have the plaintiff represented by a team of one-person lawyers throughout the proceedings to be a significant disadvantage. `Article 14(3)(d) guarantees accused persons the right of access to a lawyer whenever the interests of the administration of justice so require and, in that case, without payment on their part if they do not have sufficient resources to pay for it. The seriousness of the offence is important in deciding whether a defence lawyer should be appointed „in the interests of justice“, as is the existence of an objective chance of success at the appeal stage. In cases involving the death penalty, it goes without saying that the accused must be effectively assisted by a lawyer at all stages of the proceedings.
The legal advice provided by the competent authorities on the basis of this provision must be effective in representing the accused. The case raises similar considerations to the Victorian Court of Appeal`s decision R v Chaouk [2013] VSCA 99, which dealt with the consequences of Victoria Legal Aid`s cost-cutting measures. The Court of Appeal held that the absence of a client lawyer during the proceedings would result in unfairness, contrary to the applicant`s right to a fair trial enshrined in the High Court in Dietrich v. The Queen (1990) 177 CLR 292. The Court of Appeal therefore stayed the proceedings until adequate funding was secured. Decision: The right to legal aid in criminal matters requires effective legal assistance. It does not just appoint a lawyer. The State should have either replaced the lawyer or ensured that he fulfilled his obligations.
There has been a violation of Article 6(3)(c). Facts: The Montreal Legal Aid Commission denied the applicant`s application for legal aid to appeal his rape conviction on the grounds that his appeal was unfounded and that it was not in the interests of justice to grant legal aid. Although the Court of Appeal stressed the importance of representation and the right to a fair trial and went so far as to stay the proceedings, it avoided reprimanding the decision on the funding of legal aid.
