Access to Legal Aid may be Required for a Fair Hearing

Bobrowski v Poland [2008] ECHR 64916/01 (17 June 2008) The European Court of Human Rights has held that Poland violated its obligation to ensure a fair trial under art 6 of the European Convention on Human Rights by failing to grant legal aid to an individual in respect of civil proceedings.  However, the Court held that a denial of legal aid was justified where the applicant had hired his or her own private lawyer, notwithstanding that the lawyer proved to not be competent.


The applicant argued that Poland was in breach of art 6 (the right to a fair hearing and access to a court) by reason of the following circumstances:

  • The applicant applied to the regional court for legal aid for an appeal against a first-instance judgment.  The court refused the application without giving written reasons.  The court did, however, grant the applicant a partial exemption from court fees.
  • The Supreme Court refused to examine the applicant’s cassation appeal.
  • The applicant was refused legal aid to lodge an appeal against the decision rejecting his cassation appeal.  After failing to receive a response to a request that he be exempted from court fees, the applicant lodged an appeal with the help of a privately hired lawyer.  However, this appeal failed to comply with legal requirements.  The applicant’s subsequent request for a legal aid lawyer to draft an appeal against this procedural decision was refused because the applicant had already hired a lawyer.


Denial of legal aid to lodge an appeal

The European Court observed that while there is no obligation under the Convention to make legal aid available for all disputes; the key principle governing art 6 of the Convention is fairness.  A party in civil proceedings must be able to participate effectively by being able to put forward arguments to support his or her claims.

Having regard to the circumstances as a whole, the Court declared that the refusal to grant legal aid amounted to a contravention of art 6.  The regional court’s grant of a partial exemption from court fees indicated that it considered the applicant unable to bear the full costs of the proceedings.  The fact that there were no written grounds for the decision in respect of legal aid meant that there was nothing to explain why the regional court believed the grant of legal aid was not justified.  The principle of fairness required the court to give reasons for rejecting the applicant’s request for legal aid.


Refusal to hear appeal

The European Court ruled that the Supreme Court’s refusal to hear an appeal against the cassation appeal did not breach art 6.  The applicant’s case had been examined on the merits at two levels of jurisdiction.  The domestic limitations against appeal pursued a ‘legitimate aim’ (accelerating proceedings by excluding the examination of appeals in cases of lesser importance).

Denial of legal aid to lodge a cassation appeal

The European Court dismissed the application that the denial of legal aid to lodge a cassation appeal constituted a breach of art 6 because the applicant had hired a private lawyer.  The fact that the lawyer had incorrectly prepared the applicant’s appeal application did not infringe his rights under art 6:

The mere fact that the cassation appeal lodged by a privately hired lawyer was rejected by the court for failure to comply with the applicable formal requirements did not hinder the very essence of the applicant’s right of access to a court.

Relevance to the Victorian Charter

This case may prove relevant to the interpretation of ss 8 and 24 of the Victorian Charter.

Section 8 protects the right to equality and freedom from discrimination, both integral components of the international human rights normative framework.

Section 24 provides for the right to a fair hearing.  Specifically, s 24(1) provides that a ‘person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.’

The issue of whether ss 8 and 24 necessitate the provision of legal aid in a civil case was recently raised in the case of Kortel v Mirik and Mirik [2008] VSC 103.  That case concerned two individuals who were convicted of serious crimes.  Although legal aid was provided for their criminal charges, it was refused in relation to the compensation application and they were therefore unrepresented.  The issue was ultimately not resolved by the Court, as legal aid was provided.  The decision in this case may provide some guidance when the issue is ultimately resolved by a Victorian Court.

Adrienne Lyle, Mallesons Human Rights Law Group